Opinion
A15-1042
02-08-2016
State of Minnesota, Respondent, v. Patrick Alvin Gunnink, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Philip K. Miller, Benton County Attorney, Rebecca A. Hoffman, Assistant County Attorney, Foley, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Peterson, Judge Benton County District Court
File No. 05-CR-13-904 Lori Swanson, Attorney General, St. Paul, Minnesota; and Philip K. Miller, Benton County Attorney, Rebecca A. Hoffman, Assistant County Attorney, Foley, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Worke, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant argues that, because the state did not establish that the need for confinement outweighed the policies favoring probation, the district court abused its discretion when it revoked his probation. We affirm.
FACTS
Appellant Patrick Gunnink was charged with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (2012). The complaint alleged that Gunnink had sexual intercourse with a 14-year-old girl when Gunnink was 25 years old. Gunnink pleaded guilty to the charged offense, and the district court stayed imposition of sentence and placed Gunnink on probation with conditions.
In March 2014, two months after Gunnink was placed on probation, his probation agent submitted to the district court a sanctions conference report and notice of probation violation that alleged that Gunnink, in violation of his probation conditions, possessed a cell phone with internet access and used the cell phone to view pornography. Gunnink admitted the violation and agreed to reinstatement of probation.
On November 19, 2014, Gunnink's probation agent filed a violation report that alleged that Gunnink violated numerous conditions of his probation. The agent filed addendums to the report on January 5, 2015, and February 27, 2015, that alleged additional violations. Following a contested revocation hearing, the district court found that the state "has by clear and convincing evidence proved all" of the alleged violations, and that the "violations were intentional and inexcusable." The district court also found that based on his actions while on probation, Gunnink does not "have a reasonable likelihood of success now on probation." The district court revoked Gunnink's probation and sentenced him to 36 months in prison. This appeal followed.
DECISION
To revoke probation, a district court must find that: (1) a specific condition of probation was violated; (2) the violation was intentional or inexcusable; and (3) given the nature of the violation and the underlying offense, the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). "The decision to revoke probation cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he . . . cannot be counted on to avoid antisocial activity." State v. Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quotation omitted). We will not reverse a district court's decision to revoke probation absent a clear abuse of its broad discretion. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
Gunnink challenges only the district court's finding as to the third Austin factor. This factor requires the district court to "balance the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety, and base [its] decisions on sound judgment and not just [its] will." Id. at 606-07 (quotations omitted). A district court may find that the third Austin factor is satisfied if any one of the following subfactors is present: (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. Austin, 295 N.W.2d at 251.
Gunnink's probation agent alleged the following violations:
1. Special Condition #2: Attend sex offender program and aftercare. [Gunnink] was terminated from CORE programming on 11/12/14.
2. Special Condition #3 & #4: Attend counseling. Attend couples therapy with significant other. [Gunnink] was no call no show for CORE group on 11/5/14 and 11/12/14 and couples counseling on 11/17/14.
3. Special Condition #8: Comply with full disclosure and maintenance polygraph testing as directed by agent/therapist. [Gunnink] did not me[e]t his 10/31/14 polygraph payment deadline and has not been in communication since that time.
4. Special Condition #10: No contact with victim(s) or minors unless approved by agent and therapist. DOC Agent Liz Donkers saw a picture of [Gunnink] with a minor female, his girlfriend's daughter, posted on Facebook when his daughter was born in an Iowa hospital.
5. Special Condition #12: Obtain GED. [Gunnink] was given multiple directives to make arrangements to obtain his GED. He acknowledged that he did not follow through on that directive as he just did not make the phone calls required.
6. Special Condition #14: No alcohol/controlled substance use. On 6/13/14 [Gunnink] admitted alcohol use but claimed it was minimal.
7. Special Condition #19: Follow all instructions of probation. [Gunnink] was directed to do 40 hours a week of job search, therapy attendance and assignments and GED preparation and completion and document his activity in writing. [Gunnink] did not do as directed and documented that in writing.
8. Special Condition #17: Remain law abiding. [Gunnink] was ticketed for driving with no insurance in Sherburne County 7/23/14.
9. Special Condition #10: No contact with victim(s) or minors unless approved by agent and therapist. [Gunnink] was arrested on an outstanding warrant on 12/24/2014. He was located in the bedroom of a residence alone with a minor female.
10. Special Condition #19: Follow all instructions of probation. [Gunnink] has not maintained contact with agent or attended sex offender programming as directed. He was at a residence he was barred from entering by this agent, at the request of the landlord, and he was having unapproved contact with minors.
11. General Condition #2: I shall report to my Agent as directed. General Condition #9: I shall cooperate with and be truthful to my Agent in all matters. [Gunnink] has not maintained contact with this agent and has been intentionally dishonest in his dealings with supervision.
12. Special Condition #11 - Predatory offender registration required. [Gunnink] was released from Benton County Jail on 2/25/15 and did not update registration.
13. Special Condition #19 - Follow all instructions of probation. Upon his release from jail on 2/25/15 [Gunnink] stayed at the Bock residence that this agent specifically banned him from in 6/14 and he was arrested at on 12/24/14.
Gunnink does not dispute that the violations occurred. But he argues that the district court's decision was an abuse of discretion because the policies favoring continued probation outweighed the need for confinement. We disagree. The district court explained its decision as follows:
I look back at your Presentence Investigation. The reports that were done find you to be at moderate risk to reoffend. That scares me. You've already got one victim out there. I don't want another victim out there because I gave you a third or a fourth chance that I knew you couldn't handle.
So I don't think that there is any alternative for you at this point in time but to get you the treatment that you need in a setting of incarceration.
So I am going to find that your violations were intentional and inexcusable, and I am going to find based on your manipulative behaviors, the fact that you violated so many conditions of your probation in the past 14 months, that really your treatment is best achieved in a correctional setting.
The district court's findings satisfy the third Austin factor. The record reflects that Gunnink had more than a dozen probation violations. Although some of the violations were minor, others were directly related to the kind of behavior that constituted the underlying third-degree criminal-sexual-conduct offense. These violations included being in the presence of minors, failing to attend sex-offender treatment, failing to attend counseling, failing to make arrangements to obtain a GED, and continuing to use alcohol. The district court's findings reflect thoughtful consideration by the court and demonstrate that the need for confinement outweighs the policies favoring continued probation because, while on probation, Gunnink made no significant progress on the correctional treatment he needed. The district court did not abuse its discretion by revoking Gunnink's probation and executing his sentence.
Affirmed.