In the Matter of the Welfare of:  S. M. E., Child.

In the Matter of the Welfare of:  S. M. E., Child. A06-330, Court of Appeals Unpublished, August 7, 2007.

This opinion will be unpublished and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

A06-330

 

In the Matter of the Welfare of:  S. M. E., Child.

 

Filed August 7, 2007

Affirmed

Kalitowski, Judge

 

Carver County District Court

File No. JV-05-252

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant S.M.E.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael A. Fahey, Carver County Attorney, Janet L. Barke Cain, Assistant County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant juvenile S.M.E. challenges the district court's revocation of a stay of adjudication, arguing that (1) the district court violated his due-process rights by not following the required procedures of the delinquency rules; (2) appellant did not personally admit the probation violations; (3) some of the cited violations did not concern conditions of probation; and (4) the district court failed to make sufficient findings of fact to support adjudication of delinquency and the dispositional order.  We affirm.

D E C I S I O N

            Appellant juvenile S.M.E. was charged on April 14, 2005, with two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2004).  On June 22, 2005, appellant pleaded guilty to one count, the second count was dismissed, and the district court stayed adjudication and ordered probation.  Subsequently, appellant appeared in court for probation violation hearings on July 5, 2005; September 20, 2005; October 17, 2005; October 25, 2005; and December 12, 2005.  On December 13, 2005, the district court revoked the stay of adjudication and adjudicated S.M.E. delinquent.  Following a hearing on December 27, 2005, the district court issued an order denying appellant's motion for reconsideration of the order to revoke the stay of adjudication.

I.

            Appellant S.M.E. argues that the district court erred by revoking the stay of adjudication and by adjudicating S.M.E. delinquent because the revocation was based on (1) admissions that were made without a proper advisory and waiver of rights; (2) admissions made by counsel rather than by S.M.E. personally; and (3) behavior that was not a condition of probation.

            In juvenile delinquency cases, "[t]he district court has broad discretion in determining whether the evidence justifies the revocation of probation."  In re Welfare of R.V., 702 N.W.2d 294, 298 (Minn. App. 2005).  The district court has broad discretion to order dispositions authorized by statute.  In re Welfare of J.B.A., 581 N.W.2d 37, 38 (Minn. App. 1998), review denied (Minn. Aug. 31, 1998).  Absent a clear abuse of discretion, this court will affirm a revocation order and a disposition.  R.V., 702 N.W.2d at 298; In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn. App. 1996).  "This court will affirm the district court's disposition as long as it is not arbitrary and it achieves the goal of rehabilitating the offender."  J.B.A., 581 N.W.2d at 38; see also J.A.J., 545 N.W.2d at 414. 

            Appellant argues that his due-process rights were violated because the district court failed to follow the appropriate rules.  "Adjudicating a child for an offense after initially granting a continuance without adjudication is a probation revocation and must be accomplished pursuant to Rule 15.07."  Minn. R. Juv. Delinq. P. 15.05, subd. 4(E).  "The applicable due-process standard in a juvenile proceeding is fundamental fairness with an emphasis on factfinding procedures."  R.V., 702 N.W.2d at 298 (quotation marks omitted).  "Whether a proceeding violates a juvenile's right to due process is a question of law, which we review de novo."  Id.

            During a probation-violation hearing, the district court is required to read the child an advisory under Minn. R. Juv. Delinq. 15.07, subd. 3(B), which states:

Prior to the child admitting or denying the violation, the court shall advise the child of the following:

            (1) that the child is entitled to counsel appointed at public expense at all stages of the proceedings;

            (2) that, unless waived, a revocation hearing will be commenced to determine whether there is clear and convincing evidence that the child violated a dispositional order of the court and whether the court should change the existing dispositional order because of the violation;

            (3) that before the revocation hearing, all evidence to be used against the child shall be disclosed to the child and the child shall be provided access to all official records pertinent to the proceedings;

            (4) that at the hearing, both the prosecuting attorney and the child shall have the right to offer evidence, present arguments, subpoena witnesses, and call and cross-examine witnesses.  Additionally, the child shall have the right at the hearing to present mitigating circumstances or other reasons why the violation, if proved, should not result in revocation; and

            (5) that the child has the right of appeal from the determination of the court following the revocation hearing.

 

Here, the district court did not read the advisory to appellant at each of appellant's probation-revocation hearings.  But the record indicates that appellant was not prejudiced by the court's failure to read the advisory.  Appellant was represented by counsel at all of the probation-revocation hearings.  Moreover, he exercised the rights enumerated in the advisory by (1) requesting an evidentiary hearing, in which he presented witnesses and evidence; (2) presenting mitigating circumstances; and (3) exercising his right to appeal the decision.  Consequently, we cannot conclude that appellant was denied "fundamental fairness" in these proceedings.  See R.V., 702 N.W.2d at 298.  We conclude that, on this record, the district court's failure to read the advisory did not violate appellant's due-process rights.

            Appellant also argues that, because he did not personally admit to the probation violations, the admissions conveyed by his attorney were improperly accepted.  Appellant contends that his attorney could not admit the violations for him and that the district court erred by accepting the admissions.

In support of his argument that he was required to personally admit or deny the probation violations, appellant cites cases that require a personal waiver for fundamental rights.  See New York v. Hill, 528 U.S. 110, 114-15, 120 S. Ct. 659, 664 (2000) (holding that fundamental rights require a personal waiver; tactical decisions may be made by the lawyer); State v. Halseth, 653 N.W.2d 782, 785 (Minn. App. 2002) (waivers of trial rights for stipulated-facts trial must be made personally by the defendant).  But none of the cases that appellant cites applies to these facts.  Here, appellant personally entered a guilty plea, the validity of which is not at issue on appeal.  And appellant cites no authority for the argument that admission of a probation violation is a fundamental right requiring a personal admission.

Moreover, we reject appellant's argument that the language of the rule explicitly requires a personal waiver from the child.  Minn. R. Juv. Delinq. P. 15.07, subd. 3, states: "The child shall either admit or deny the allegations of the probation violation report."  The plain language of the rule does not include the word "personal."  We conclude that it was not error for the district court to accept appellant's attorney's admission of a probation violation.  And even if appellant is required to personally admit a violation, the record indicates that appellant made an admission at the hearing on October 25, 2005.  The district court asked S.M.E.:  "[Y]ou do admit you are in violation of your probation?"  S.M.E. replied:  "Yes."  

            Appellant also argues that in revoking the stay of adjudication, the district court cited behavior that did not violate conditions of probation, including the fact that S.M.E. had not been open and honest in therapy and that S.M.E. did not attend school while on furlough from electronic home monitoring for that purpose.

A probationer cannot violate a condition that has not been imposed by the court.  See State v. Ornelas, 675 N.W.2d 74, 79-80 (Minn. 2004); R.V., 702 N.W.2d at 303.  But although some of the alleged violations were arguably not included in the conditions of probation, it is undisputed that appellant violated the condition that he inform his probation officer of his whereabouts.  This is a serious probation violation that supports the district court's decision to revoke appellant's stay of adjudication.

II.

Appellant argues that the district court erred by adjudicating appellant delinquent because the district court failed to make the requisite findings.  "The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The district court has broad discretion to order any disposition authorized by statute.  J.B.A., 581 N.W.2d at 38.  Absent a clear abuse of that discretion, we will not disturb the disposition.  Id.

This court has held that there is nothing "that requires particularized findings on the court's decision to impose or withhold adjudication of delinquency.  The particularized findings, including the finding on the least restrictive means for restoring a juvenile to law-abiding conduct, are required in determining a disposition, but not when deciding whether to adjudicate or stay adjudication."  In re Welfare of J.R.Z., 648 N.W.2d 241, 246 (Minn. App. 2002) (quoting In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn. App. 1999)), review denied (Minn. Aug. 20, 2002).  The district court may stay adjudication "[w]hen it is in the best interests of the child to do so and when the child has admitted the allegations contained in the petition."  Minn. Stat. § 260B.198, subd. 7 (2004).  The district court may also consider the protection of the public in determining whether to stay adjudication.  Minn. R. Juv. Delinq. P. 15.05, subd. 4(A).  Here, the district court initially stayed adjudication.  But the court subsequently revoked the stay of adjudication and deemed S.M.E. delinquent.  We conclude that the district court did not err by failing to make particularized findings.

Appellant further argues that the district court violated Minn. R. Juv. Delinq. P. 15.05, subd. 2B, in its dispositional order.  Appellant contends that the dispositional order, which required appellant to register as a predatory sex offender and to provide a DNA sample, did not include the required particularized findings regarding alternative dispositions and addressing why the best interests of the child and public safety support the disposition.  We disagree.

Here, the record indicates that the disposition ordered by the district court is that appellant register as a sex offender and submit his DNA.  This disposition is required by statute:  A juvenile adjudicated delinquent for criminal sexual conduct under Minn. Stat. § 609.344, is required to register as a predatory offender.  Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (2004).  Because the district court had no discretion in ordering appellant's disposition, we conclude that particularized findings were not required. 

            Affirmed.