Opinion
No. C3-99-166.
Filed June 15, 1999.
Appeal from the District Court, Dakota County, File No. K4970021.
Mike Hatch, Attorney General, and
James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant Dakota County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, (for appellant)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Gregory Taylor contends the trial court abused its discretion by revoking his probation and executing his sentence for first-degree burglary. Appellant asserts that the judge presiding over his first revocation hearing earlier in 1998 knew that appellant had reoffended, although such information was not presented to the court on the record, and that the judge still reinstated his probation. He argues that nothing happened in the time between the two hearings to account for the difference in dispositions. We affirm the revocation.
FACTS
In March 1997, appearing in Dakota County before Judge Karen Asphaug, appellant pleaded guilty to first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (1996). The court accepted the plea and imposed a 54-month stayed sentence, a downward durational and dispositional departure from the presumptive sentence of 98 months, executed. Conditions of the stay, which was for a duration of 20 years, included the demand that appellant remain law abiding.
In September 1997, appellant pleaded guilty in Ramsey County to the felony of fleeing a police officer in a motor vehicle, in violation of Minn. Stat. § 609.487 (1996), committed September 2, 1997.
In November 1997, Dakota County Community Corrections agents filed a recommendation for revocation of appellant's probation on the burglary conviction, on the grounds that he had failed to report to the probation department and that he had failed to complete the psychological evaluation. At a Dakota County hearing before Judge William Thuet in January 1998, appellant admitted to having violated his probation by not doing either of these two things. There was no mention of the Ramsey County felony conviction, in the recommendation or on the record of the January hearing.
In March 1998, appellant was sentenced to 20 months' imprisonment for the Ramsey County offense. In April, Dakota County Community Corrections personnel again filed a recommendation for revocation of appellant's probation, this time for failure to remain law abiding due to the Ramsey County conviction.
At the October 1998 revocation hearing, before Judge Asphaug, appellant testified that at the prior hearing his attorney had informed Judge Thuet, off the record, about his Ramsey County conviction. Judge Asphaug then observed:
There is no reference in the * * * probation violation transcript of either the Probation Department's knowledge of the Ramsey County offense or Judge Thuet's accepting an admission to a probation violation on the Ramsey County offense.
On the second revocation recommendation, the court found that the state had produced clear and convincing evidence that appellant (1) had failed to remain law abiding due to the fleeing-a-police-officer conviction, (2) was unamenable to probation supervision, and (3) had to be confined to protect public safety. The court vacated the stay and executed the sentence to run concurrently with appellant's sentence for fleeing a police officer.
DECISION
Appellant bases his appeal primarily on the assertion that Judge Thuet was informed of his Ramsey County conviction at the time of his first probation revocation hearing, but he nonetheless reinstated probation. But because neither party raised the issue of the subsequent felony on the record at the prior hearing, it cannot be determined whether the judge knew of the felony when he decided against incarcerating appellant. This appeal fails to the extent that it was premised on this assertion. See, e.g., State v. Larson , 520 N.W.2d 456, 464 (Minn.App. 1994) (appellate court cannot base its decision on matters outside the record) review denied (Minn. Oct. 14, 1994).
Appellant also asserts that it was unjust to revoke the entire 54-month sentence because of mitigating circumstances related to the original sentence. The term of the ordered revocation, within the parameters of the original sentence, was well within the trial court's discretion. There is no claim of other errors in the trial court's supporting findings, and the court did not abuse its discretion in revoking appellant's probation. See State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1980) (recognizing broad discretion of trial court on revocation decision).