In the Matter of the Welfare of: C.L.L., Child.

This opinion will be unpublished and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

A03-752

In the Matter of the Welfare of:

C.L.L., Child.

Filed June 1, 2004

Reversed

Lansing, Judge

Scott County District Court

File No. 01-15568

Lawrence Hammerling, Deputy State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

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

Patrick Ciliberto, Scott County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN, 55379-1220 (for respondent)

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from an order revoking a stay of adjudication of delinquency, C.L.L. challenges the adequacy of his admissions to provide a basis for revocation.  Because C.L.L.'s admissions do not constitute a violation of the stayed adjudication, we reverse.

F A C T S

The Scott County Attorney charged C.L.L. with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(a) and 2 (2000), and second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subds. 1(a) and 2 (2000).  The district court found that the state proved the petition charging second-degree criminal sexual conduct but did not prove the petition charging first-degree criminal sexual conduct.

At the December 10, 2002 disposition hearing, the district court stayed adjudication on specified conditions and placed C.L.L. on probation.  The conditions stated on the record at the disposition hearing required C.L.L. to remain law abiding, obtain a psychiatric evaluation, participate in individual and family counseling, have no contact with the victim, have no unsupervised contact with any minor child, work toward obtaining his G.E.D., maintain some form of employment, and make restitution in an amount to be determined by the court.  These conditions were noted on a findings-and-order form that was signed by the judge following the trial.  Most of the conditions noted on the order conformed to the court's oral statement of the conditions at the disposition hearing.  Three did not.  The findings-and-order form noted restitution as $.01 rather than "to be determined," noted the G.E.D. requirement as "Get G.E.D." rather than "work toward obtaining . . . G.E.D.," and noted the employment requirement, somewhat ambiguously, as "remove full-time employment, must be employed."

Five and one-half months after the disposition hearing, Scott County filed a notice of alleged violation of three conditions:  (1) failure to maintain full-time employment, (2) failure to obtain a G.E.D., and (3) failure to pay $1,584.84 in court-ordered restitution.

At the violation hearing, C.L.L. admitted that he had not maintained full-time employment.  The report appended to the county's notice of violation stated that C.L.L. was employed on a temporary basis in his uncle's roofing business, but the hours were not guaranteed.  The report also stated that C.L.L.'s mother said that C.L.L. was depressed and had suffered a mental "breakdown" in April.  An assessment and evaluation prepared for the disposition hearing stated that C.L.L. had been employed since December 2001 by his uncle's business, Bradach Roofing, but the company had experienced a loss of business.  C.L.L. also admitted that he had not obtained his G.E.D.  The report stated that C.L.L. took the test in May but was unable to pass.  At the time of the violation hearing he was scheduled to retake the test in June 2003.  C.L.L.'s attorney told the court that the restitution amount had only been determined earlier that month and that C.L.L. intended to contest the amount within the allowable thirty-day period, which had not yet expired.  C.L.L. said that he intended to pay restitution when it was finally determined.

Based on C.L.L.'s admissions that he had failed to maintain full-time employment or to obtain his G.E.D., the district court adjudicated C.L.L. delinquent and imposed disposition requirements that included continued probation, sex-offender registration, and submission of DNA and fingerprints to law enforcement authorities.  C.L.L. appeals from the revocation, arguing that his admissions do not constitute a violation of the conditions for the stayed adjudication, that the revocation process was procedurally defective, and that he was denied effective assistance of counsel.  The Scott County Attorney did not submit a brief or otherwise participate in this appeal

D E C I S I O N

The district court has considerable discretion in determining whether evidence is sufficient to revoke probation.  State v. Ornelas, 675 N.W.2d 74, 79 (2004); see also Minn. R. Juv. Delinq. P. 15.05, subd. 4(E) ("Adjudicating a child for an offense after initially granting a continuance without adjudication is a probation revocation . . . .").  The legal standard for revoking probation requires the court to (1) designate the specific condition or conditions a probationer violated, (2) find that the violation was intentional and inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  The Austin factors apply not only to adult probation violations, but also to probation revocation in the juvenile court.  See State v. B.Y., 659 N.W.2d 763, 768-69 (Minn. 2003) (applying Austin factors to probation revocation in an extended-juvenile-jurisdiction proceeding).

The first Austin factor requires the district court to designate the specific condition or conditions that have been violated.  Austin, 295 N.W.2d at 250.  The district court revoked the stay of adjudication based on C.L.L.'s admissions to Scott County's allegations that he failed to maintain a full-time job and failed to obtain a G.E.D.  The fact that a probationer admits a violation based on an erroneous belief of the conditions of probation does not waive the requirement that the violated condition must have been a condition actually imposed by the court.  See Ornelas, 675 N.W.2d at 80 (revoking probation based on an admitted violation of a no-contact order was improper when the no-contact order was not a condition of probation); B.Y., 659 N.W.2d at 769 (executing a stayed juvenile disposition order based on an admitted curfew violation was improper when the curfew was not made a part of the disposition order).

Consequently, as part of our consideration of the first Austin factor, we must determine whether the admitted conditions were actually imposed.  Ornelas, 675 N.W.2d at 79-80.  In determining what conditions are actually imposed, an orally pronounced sentence controls over a written order when the two conflict.  State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002).  If an orally pronounced sentence is ambiguous, the written order is evidence which may be used to determine the intended sentence.  Id. 

The district court judge who presided at the probation revocation hearing was not the same judge who presided at C.L.L.'s adjudication and disposition hearing.  The judge at the revocation hearing relied on Scott County's recitation of the conditions of the stay and the findings-and-order form signed by the judge who presided at the adjudication and disposition hearing.  Although in most cases this reliance would be justified by the underlying oral pronouncement of conditions, in this case it is not.  The two specific conditions which the district court found had been violated vary between the oral pronouncement and their notation on the findings-and-order form.

The oral pronouncement of the employment condition did not require C.L.L. to obtain full-time employment.  The condition, in fact, is to the contrary.  The district court said, "[w]ith respect to the employment issue, I am just going to remove the full-time provision because if you are working on your G.E.D. and have other issues it may not be possible for you to be employed full-time."  The court directed court services to ensure that C.L.L. had some form of employment so long as it did not interfere with C.L.L. working on his G.E.D.  The condition noted on the findings-and-order form also did not require full-time employment but ambiguously stated "remove full-time employment, must be employed."  In any event, the court's orally stated condition is not ambiguous and does not require full-time employment.

The oral pronouncement of the G.E.D. condition also varied from the notation on the findings-and-order form.  In pronouncing the conditions of the stay, the court specifically required C.L.L. to "work toward[] obtaining your G.E.D."  The court expressed concern over whether C.L.L. could obtain a G.E.D. within the six months of probation before he turned nineteen.  After restating the importance of a G.E.D., the court again stated the condition that C.L.L. "actively pursue[]" the equivalent of a high school diploma.

The state has the burden to prove that the conditions have been violated.  Ornelas, 675 N.W.2d at 81 (recognizing that state must prove probation violation by clear and convincing evidence).  But "before a probation violation can occur, the condition alleged to have been violated must have been a condition actually imposed by the court."  Id. at 80.  The state did not allege that C.L.L. failed to work toward obtaining his G.E.D., only that he failed the test.  Neither did the state allege that C.L.L. failed to maintain some employment but alleged, instead, that C.L.L. failed to maintain full-time employment.

The alleged education and employment conditions which C.L.L. admitted that he violated were not actually imposed.  Consequently, the first Austin factor has not been met.  The district court did not address the second and third Austin factors.  Under the reasoning of B.Y., even when the juvenile admits to alleged violative conduct, the court must find that the violation was intentional or inexcusable and that the need for imposition outweighs the policy for continuing the status quo.  B.Y., 675 N.W.2d at 80-81.  Because we conclude that the first Austin factor has not been satisfied, we need not address whether the record could support a determination that the second and third factors were satisfied.

            Reversed.

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