This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1592

State of Minnesota, 

Respondent, 

vs. 

J.A.H., 

Appellant.

Filed April 13, 2015

Affirmed

Hudson, Judge

Dissenting, Reyes, Judge

Hennepin County District Court

File Nos. 27-CR-14-22063, 27-JV-12-413

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and 

Reyes, Judge. 

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant argues that the district court abused its discretion when, following his 

first probation violation, it declined to follow the recommendation of his probation agent 
2

and revoked his extended-juvenile-jurisdiction (EJJ) status, executing his 120-month 

sentence. Because the district court appropriately weighed the factors in State v. Austin, 

295 N.W.2d 246, 249–50 (Minn. 1980), including that the need for appellant’s 

confinement outweighed the policies favoring probation, we affirm. 

FACTS

In 2012, appellant J.A.H., then 16 years old, was identified as a person who shot 

and seriously injured two people in an incident involving Native Mob gang members.

The state charged appellant by petition with attempted second-degree felony murder, 

first-degree assault, and first-degree burglary, all committed for the benefit of a gang—

the Native Mob. The district court denied the state’s motion for presumptive adult 

certification and ordered appellant designated as EJJ pursuant to Minn. Stat. § 260B.130 

(2010). 

In August 2012, appellant pleaded guilty to two amended counts of second-degree 

assault and one count of first-degree burglary. The district court sentenced appellant to 

120 months, stayed on the condition that he successfully comply with EJJ probation, 

which included standard conditions of probation, completing the Woodland Hills 

Residential Treatment Program, and having no contact with the victims. 

Appellant completed the program at Woodland Hills in Duluth and transitioned to 

a semi-independent living program. But he returned to the Twin Cities in December 

2013, and in February 2014, his probation agent filed an arrest-and-detain report after 
3

appellant failed to maintain contact with his probation agent.1 Appellant waived his right 

to a contested Morrissey hearing and admitted that he had remained out of contact with 

his probation agent for approximately six weeks, tested positive for illegal drugs, had 

ongoing contact with documented Native Mob gang members, and failed to attend school 

or make a good-faith effort to obtain employment. The district court accepted evidence 

of a disposition review from appellant’s probation officer, who recommended 

commitment for appellant at Minnesota Correctional Facility-Red Wing (MCF-Red 

Wing). 

The district court issued an order revoking EJJ probation and ordering execution 

of appellant’s 120-month adult sentence. The district court found that appellant had 

violated the terms of his probation, that the violations were intentional and inexcusable, 

and that the need for his confinement outweighed the policies favoring continued 

probation. The district court found that, although appellant had spent more than 15 

months in treatment in Duluth, within weeks after his return to the Twin Cities, he had 

failed to attend school; failed to maintain contact with his probation agent; used illegal 

drugs, including marijuana and methamphetamine; and actively affiliated with gangs by 

taking pictures with known gang members and posting those pictures on social-media

sites. The district court found that, based on this immediate departure from his probation 

terms, treatment at MCF-Red Wing would be inadequate. The district court also found 

that appellant had extremely serious original offenses, which implicated public-safety 

 

1 Appellant’s probation officer contacted appellant prior to issuing an apprehension-anddetention order, directing appellant to report to the probation office immediately. 

Appellant did not do so.
4

concerns and were influenced by gang relations; that his re-association with gang 

members demonstrated he was a public-safety risk; and that his use of illegal drugs and 

failure to remain in contact with probation further established that he was unamenable to 

services in the juvenile system. Appellant moved for reconsideration, which the district 

court denied, finding that his actions were a choice; that psychological evidence in the

EJJ proceeding had identified his association with gang peers as his greatest risk to 

reoffend; that confinement was necessary to protect the public from further criminal 

activity; and that it would unduly depreciate the seriousness of the violation if probation 

were not revoked. This appeal follows. 

D E C I S I O N 

A district court has broad discretion in determining whether to revoke probation, 

and this court will not reverse that decision absent a clear abuse of discretion. State v. 

Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). Before revoking probation, however, the 

district court must perform a three-step analysis: designating the specific probationary 

conditions that were violated, finding that the violation was intentional or inexcusable, 

and finding “that [the] need for confinement outweighs the policies favoring probation.” 

Id. at 250; see also State v. B.Y., 659 N.W.2d 763, 768–69 (Minn. 2003) (holding that the 

Austin factors apply to EJJ revocation proceedings). The decision to revoke 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. The district court’s findings on the Austin 

factors must conform to procedural requirements and convey the substantive reasons for 
5

revoking probation and the evidence supporting that decision. State v. Modtland, 695 

N.W.2d 602, 608 (Minn. 2005). “The required Austin findings ensure that the district 

court has fully considered any claims by the defendant that revocation is not warranted 

because his probation violation was either unintentional or excusable, or because 

revocation would be inconsistent with the public policies favoring probation.” State v. 

Cottew, 746 N.W.2d 632, 637 (Minn. 2008). 

Appellant challenges the district court’s finding on the third Austin factor. When 

finding that the need for confinement outweighs the policies favoring probation, the 

district court must find the presence of at least one of three policy subfactors: 

(1) “confinement is necessary to protect the public from further criminal activity by the 

offender”; (2) “the offender is in need of correctional treatment which can most 

effectively be provided if he is confined”; or (3) “it would unduly depreciate the 

seriousness of the violation if probation were not revoked.” Modtland, 695 N.W.2d at 

607 (quotations omitted). Appellant maintains that he does not need to be confined to 

protect the public from additional criminal activity because his probation violations 

displayed only immature behavior; that any need for his confinement to protect the public 

can be best served by his commitment through the juvenile system, rather than adult 

prison; and that if probation were not revoked, it would not unduly depreciate the 

seriousness of his offense because he would still be under confinement at MCF-Red 

Wing. 

Here, the district court found that confinement was necessary to protect the public 

from appellant’s further criminal activity, based on his immediate violation of several 
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substantive probation conditions after returning to the Twin Cities, including his 

association with gang members, a previously identified risk factor. See Austin, 295 

N.W.2d at 251 (noting that probation revocation “requires a showing that the offender’s 

behavior demonstrates that he or she cannot be counted on to avoid antisocial activity” 

(quotation omitted)). Unlike the minor curfew violations involved in B.Y., 659 N.W.2d at 

770–71, cited by the dissent, appellant’s probation violations included the use of illegal 

drugs and association with gang members. Thus, the district court also found that 

appellant’s violations made him unamenable to additional treatment in the juvenile 

system and that the seriousness of his violation would be depreciated if probation were 

not revoked. See Austin, 295 N.W.2d. at 251 (noting that a failure to make a commitment 

to rehabilitation supported a reasonable conclusion that treatment had failed). 

Specifically, the district court noted that the MCF-Red Wing program recommended by 

appellant’s probation officer was not a viable option as it was “another out of home 

placement with similar treatment goals [and thus] would be unlikely to change 

[appellant’s] conduct.” Appellant’s failure to heed his probation officer’s warning of 

consequences for failing to maintain contact with probation also illustrates his disinterest 

in rehabilitation. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding 

that failure to heed warnings that a particular behavior violates probation and may trigger 

consequences indicates that probation is not succeeding and a greater need for 

confinement exists), review denied (Minn. July 20, 1995), abrogated in part on other 

grounds by Modtland, 695 N.W.2d at 606. 
7

The district court’s decision to revoke probation reveals it considered appellant’s 

successful completion of his residential treatment program. Indeed, the district court 

observed that appellant had “accomplished a great deal throughout the time at Woodland 

Hills and has learned the tools to live a clean and health[y] lifestyle if he chooses.” But 

the district court also considered appellant’s inability to commit to continued 

rehabilitation, as shown by his swift violation of probation conditions within weeks after 

re-entering the community. In particular, given the gravity of appellant’s initial crimes 

and his continued association with Native Mob gang members, the district court 

concluded that appellant was a risk to public safety. As evidenced by the district court’s 

willingness to take additional argument on appellant’s motion for reconsideration, the

district court did not make a reflexive decision to revoke probation, but rather, carefully 

reviewed appellant’s arguments. See, e.g., State v. Osborne, 732 N.W.2d 249, 255 

(Minn. 2007) (upholding probation-revocation decision when the district court continued 

a hearing to review the record and issued a thorough explanation for its decision). A 

close examination of the record shows that it supports the district court’s findings on the 

third Austin factor, and the district court did not abuse its discretion in revoking 

probation. 

Affirmed. 
D-1

REYES, Judge (dissenting) 

I respectfully dissent. The district court’s failure to address relevant mitigating 

factors when they are present in an Extended Juvenile Jurisdiction (EJJ) probation 

revocation is error under Minnesota Supreme Court precedent. Moreover, the district 

court abused its discretion in determining that the need to execute a 10-year adult prison 

sentence on J.A.H. after his first offense outweighs the policies favoring probation. I 

would reverse.

Failure to Consider Mitigating Factors 

In determining whether to revoke an EJJ probation and execute a sentence after 

admitted violations, courts must consider all circumstances of probation, including any 

mitigating factors relating to the violations. State v. B.Y., 659 N.W.2d 763, 772 (Minn. 

2003). Failure to find any mitigating factors when they are present is reversible error. Id.

at 770. “This is especially true because a mitigation finding, when reduced to writing, 

can be sufficient to avoid the harsh and inflexible result otherwise required by Minn. Stat. 

§ 260B.130, subd. 5 or [related EJJ rules].” Id. at 772. Moreover, “[d]ue process 

requires that a defendant be given an opportunity to show that even if a condition of 

probation was violated, mitigating circumstances exist such that the violation does not 

warrant revocation.” State v. Cottew, 746 N.W.2d 632, 636 (2008) (citing Pearson v. 

State, 308 Minn. 287, 289–90, 241 N.W.2d 490, 492 (Minn. 1976)) (other citations 

omitted). “Mitigating factors include amenability to treatment, successful completion of 

a treatment program, and whether the violations show a potential for recidivism.” State 

v. J.E.S., 763 N.W.2d 64, 69 (Minn. App. 2009) (citing B.Y., 659 N.W.2d at 770).
D-2

Here, the district court failed to find any mitigating factors, contrary to the 

undisputed record containing several mitigating factors. See B.Y., 659 N.W.2d at 772 

(stating that “a district court in its mitigation findings must be certain to take all of the 

circumstances of probation into consideration”). In that case, B.Y. was on EJJ probation 

after pleading guilty to kidnapping and committing a crime for the benefit of a criminal 

gang. Id. at 764. He had successfully completed the Woodland Hills program, but 

subsequently violated the terms of his probation. Id.at 764-766. B.Y.’s probation officer 

recommended revoking probation, and the state did as well due to his “multiple 

violations.” Id. at 766. The district court revoked probation, “finding no mitigating 

factors,” without additional findings on those factors, and executed his 108-month 

sentence. Id. at 767. B.Y. appealed, and we affirmed, concluding that in the absence of 

written findings of mitigating factors by the district court, the EJJ statute required the 

execution of B.Y.’s sentence. Id. at 765. The supreme court reversed and remanded for 

the district court to make additional findings on mitigating factors present in the record. 

Id. at 771. 

Similarly here, at the July 29, 2014 hearing, the district court twice stated that the 

“Court has previously found that there are no mitigating factors.”2 This finding is clearly 

erroneous based on the record before us. Here J.A.H., just like B.Y., successfully 

completed the rigorous 16-month residential program at Woodland Hills in Duluth and 

received positive reports from the very beginning of the program, demonstrating his 

 

2

The district court stated earlier in the hearing that “[J.A.H.] has accomplished a great 

deal throughout the time at Woodland Hills and has learned the tools to live a clean and 

healthy lifestyle if he chooses,” but apparently did not find this to be a mitigating factor.
D-3

amenability to probation. “[S]uccessful completion of the rigorous Woodland Hills 

rehabilitation program should be appropriately considered by the district court as a 

mitigating factor demonstrating amenability to probation.” B.Y. at 770. J.A.H. then 

successfully transitioned into the semi-independent living program. Moreover, J.A.H. 

obtained his high school diploma while in the program and even finished a semester of 

college. And until the present violation, which was his first and only violation, J.A.H. 

had complied with all of the terms and conditions of his probation. I would conclude that 

on this record, the district court’s failure to address clearly documented mitigating factors 

amounts to reversible error. See B.Y., 659 N.W.2d. at 770. 

Analysis of the Third Austin Factor 

I would also conclude that the district court abused its discretion in determining 

that the need for public safety from J.A.H. outweighs the policies favoring probation. 

Before revoking probation, a district court must make three findings under State v. 

Austin, 295 N.W.2d 246 (Minn. 1980). “[T]he court must (1) designate the specific 

condition or conditions 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.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (quoting Austin, 295 

N.W.2d at 250). Only the third Austin factor is at issue here. Furthermore, when 

analyzing the third Austin factor, the district court must find at least one of three policy 

factors: (1) the need for “confinement is necessary to protect the public from further 

criminal activity by the offender”; (2) “the offender is in need of correctional treatment 
D-4

which can most effectively be provided if he is confined”; or (3) “it would unduly 

depreciate the seriousness of the violation if probation were not revoked.” Id. at 607. 

The supreme court has stated that “[w]hen determining if revocation is 

appropriate, courts must balance ‘the probationer's interest in freedom and the state's 

interest in insuring his rehabilitation and the public safety’. . . .” Id. at 606-607 (citing 

Austin, 295 N.W.2d at 250). But even when probation terms are violated, “policy 

considerations may require that probation not be revoked.” Austin, 295 N.W.2d at 250. 

Indeed, “revocation should be used only as a last resort when treatment has failed.” Id. 

“If the violation is one of youthful obstinance, it may not always foreclose a 

determination that an EJJ defendant is amenable to probation.” B.Y., 659 N.W.2d at 772.

In its June 3, 2014 order and again during the July 29, 2014 hearing, the district 

court relied on the first policy factor—that “confinement is necessary to protect the 

public from further criminal activity”—to support its finding on the third Austin factor. 

At the July 29, 2014 hearing, the district court also found “that it would unduly 

depreciate the seriousness of the violation if the probation was not revoked.” However, 

the district court did not provide any substantive reasons for this finding. See Modtland, 

695 N.W.2d at 608 (“courts must seek to convey their substantive reasons for revocation 

and the evidence relied upon”). Because the district court primarily relied on the 

confinement policy with substantive reasoning but did not do so for the third policy 

factor, I address the confinement policy. Id.

The district court’s finding on the third Austin factor, that the need for 

confinement outweighed the policies favoring probation, is an abuse of discretion for 
D-5

three reasons. First, there is a viable alternative to execution of his 120-month sentence 

with the MCF-Red Wing program recommended by J.A.H.’s probation officer.

3

 This 

program would provide treatment while keeping him confined, thereby addressing the 

concern for confinement to protect the public expressed by the district court. At the same 

time, that placement would encourage rehabilitation, which has been recognized as “the 

purpose of probation”. Modtland, 695 N.W.2d at 606 (quotation omitted).

Second, J.A.H. has shown that he is amenable to probation and rehabilitation. As 

stated above, he successfully completed a 16-month residential program, transitioned into 

a semi-independent living program, obtained his high school diploma, completed a 

semester of college and until the violation otherwise complied with the terms of 

probation. See B.Y., 659 N.W.2d at 770 (stating that “successful completion of the 

rigorous Woodland Hills rehabilitation program . . . demonstrate[ed] amenability to 

probation”). The MCF-Red Wing program would provide J.A.H. the skills and 

individual therapy necessary to assist him in avoiding association with gang members. 

And since he obtained his high school diploma while in the Woodland Hills program, he 

would be eligible to continue his post-secondary education or vocational training at the 

MCF-Red Wing program. 

 

3

In contrast to the probation officer’s recommendation in the instant case, in Modtland

the probation officer recommended incarceration, stating that he was a “huge risk to 

public safety,” not amenable to the Minnesota Teen Challenge program, and that the only 

alternative was execution of his sentence. 695 N.W.2d at 605. The supreme court 

nevertheless reversed and remanded for failing to address the second and third Austin

factors. Id. at 608.
D-6

Third, while J.A.H’s underlying convictions were for unquestionably serious 

crimes (second-degree assault and first-degree burglary), his probation violations were 

unrelated to those underlying crimes. Nevertheless, the district placed great weight on 

J.A.H. violating the terms of his probation by having contact with gang members, noting 

that he posted photographs on Facebook of himself wearing gang colors and flashing 

gang signs. While these were admitted violations of probation, postings on Facebook 

appear to reflect “youthful obstinance” and do not necessarily foreclose the possibility 

that he is amenable to probation. Id. at 772. 

I recognize the challenge district courts face when having to make decisions on 

EJJ revocation hearings by balancing public safety concerns with the desire for 

rehabilitation. Although we afford district courts great deference, as an error-correcting 

court we must reverse when errors occur. Failure to find mitigating factors when such 

exist is reversible error. Moreover, the supreme court has consistently emphasized the 

strong preference for rehabilitation and using revocation as a last resort only when 

treatment has failed. See Modtland, 695 N.W.2d at 606 (quoting Austin, 295 N.W.2d at 

250). I would reverse.