State of Minnesota, Respondent, vs. Gregory Steven Young, Appellant.

State of Minnesota, Respondent, vs. Gregory Steven Young, Appellant. A06-227, Court of Appeals Unpublished, April 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-227

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory Steven Young,

Appellant.

 

 

Filed April 24, 2007

Reversed

Lansing, Judge

 

Beltrami County District Court

File No. K2-03-2056

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, Beltrami County Courthouse Annex, Suite 40, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)

 

John Stuart, State Public Defender, Renée Bergeron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            At a probation-revocation first appearance, Gregory Young appeared without counsel and admitted that he had violated conditions of his probation.  At the probation-revocation hearing, the district court revoked Young's probation and executed his stayed sentences for failure to register as a predatory offender and false declaration in a welfare application.  Because the district court failed to adequately inform Young of his rights and failed to provide a written notice of Young's alleged probation violations, we reverse.

F A C T S

            In March 2004, Gregory Young pleaded guilty to failure to register as a predatory offender and making a false declaration in a welfare application.  Based on a plea bargain between Young and the state, the district court sentenced the failure-to-register offense as a gross misdemeanor, stayed both sentences, and placed Young on probation for five years.  The district court gave Young concurrent credit for time served but ordered that the stayed sentences would be consecutive. 

            Young made a first appearance in court in October 2005 on a probation-violation charge.  According to the transcript of the hearing, the state alleged that Young had failed to register as a predatory offender, failed to report to his probation officer, and failed to keep his probation officer informed of his residence.  The district court informed Young of his right to counsel but did not inform him of his right to a hearing.  Young waived his right to counsel, but he requested a written notice of his alleged violations.  The record contains no indication that Young received a written notice.  After the district court gave Young a short, oral summary of the allegations, Young admitted the violations.  The district court ordered that Young be held without bail, and Young asked for a lawyer to represent him. 

            At the probation-revocation hearing, the district court ordered that Young's sentences for failure to register and false declaration be executed consecutively.  Young appeals, arguing that the procedures at the first appearance that resulted in his admission to the violations denied him due process and that the record provides no justification for the consecutive sentence.

D E C I S I O N

Due process requires that before the district court may revoke probation and execute a stayed sentence, the probationer must be given written notice, which "should state what . . . violations have been alleged."  Morrisey v. Brewer, 408 U.S. 471, 487, 92 S. Ct. 2593, 2603 (1972); see also Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 1759-60 (1973) (applying Morrisey standard to probation violations).  Similarly, Minn. R. Crim. P. 27.04, subd. 2(1), requires written notice of alleged probation violations.  The record confirms that Young requested to "see what the violation" was before he admitted or denied the allegation.  The prosecutor responded that Young had that right but that the county attorney's office had received nothing from the probation office. 

            Minnesota appellate courts have not determined whether the failure to comply with Minn. R. Crim. P. 27.04, subd. 2(1), is a structural error that requires reversal or is subject to a harmless-error analysis.  Cf. Pearson v. State, 308 Minn. 287, 291-92, 241 N.W.2d 490, 493 (1976) (applying harmless-error analysis to procedural errors at probation-revocation hearing in case decided before adoption of Minnesota Rules of Criminal Procedure).  Even if we concluded that a harmless-error analysis applied, however, we cannot conclude that the error in this case was harmless. 

First, when Young admitted the probation violations, he was not assisted by counsel.  Second, the record provides no basis to find that the district court informed Young of his right to a contested probation-revocation hearing, his right to present evidence or witnesses, and his right to have the state prove the allegations against him by clear and convincing evidence.  See Minn. R. Crim. P. 27.04, subd. 2(1) (requiring advice of rights at first appearance).  Third, the alleged probation violations involved factual issuessuch as the extent of his contact with his probation officerthat Young could reasonably have chosen to dispute. 

The hearing transcript contains no indication that Young was informed of his trial rights at any time before or during the first appearance.  Although the record contains a form titled "Probation Violation or Violation of Sentencing Order Statement of Rights," the form was not signed by Young.  The state did not submit a brief and has not disputed Young's claim that the district court failed to inform him of these rights.  At the first appearance, Young indicated that he had made numerous calls to the probation officer and that the calls were not returned.  Under these circumstances, it was essential that Young be fully informed of the alleged violations and his trial rights.  Thus, the procedural errors were not harmless.

            The violations of Young's Morrisey rights and the lack of compliance with the rules of criminal procedure require reversal of the probation revocation and the order to execute the stayed sentences.  We therefore do not reach Young's challenge to the imposition of consecutive sentences.  We note, however, that Young's objection to his consecutive sentences has a basis in caselaw, and if the county provides proper notice of probation violations that result in a revocation of probation and an execution of the conditional sentences, the reasons provided in this record for the consecutive sentencing may be insufficient.  See State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985) (concluding that sentencing guidelines technically do not apply to gross misdemeanors, but technical nonapplicability will not justify aggregate confinement that would exceed felony conviction).   

            Reversed.

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