Opinion
No. C5-96-932.
Filed August 13, 1996.
Appeal from the District Court, Hubbard County, File No. K693397.
Hubert H. Humphrey III, Attorney General, (for Respondent).
Gregory D. Larson, Hubbard County Attorney, (for Respondent).
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, (for Appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
This appeal is from an order revoking probation that the court had imposed following appellant Edward Everett Urbanek's 1994 conviction for second-degree criminal sexual conduct. See Minn. Stat. § 609.343, subd. 1(g) (1994). Urbanek argues that the trial court abused its discretion in revoking probation, that he should be allowed to withdraw his guilty plea, that he was denied his right to be present at the hearing, and that he is entitled to jail credit for his time in a treatment program. We affirm.
FACTS
Urbanek was charged with two counts of first-degree criminal sexual conduct for sexual penetration of his girlfriend's four-year-old daughter. He pleaded guilty to the lesser offense of second-degree criminal sexual conduct, under a plea agreement calling for him to serve one year in jail, and to be evaluated before sentencing at the Minnesota Security Hospital at St. Peter for admission to the Intensive Treatment Program for Sexual Aggressives (ITPSA) program. If admitted to the ITPSA program, Urbanek would receive a stayed sentence, and be required, as a condition of probation, "to successfully complete that program or serve the prison sentence." If Urbanek was not accepted into ITPSA, the court would allow him to withdraw his guilty plea.
Urbanek was admitted to the ITPSA program, although no opening was available at the time of sentencing. Urbanek entered the ITPSA program on June 29, 1994. The ITPSA program requires the offender to complete four treatment phases. Urbanek was discharged from ITPSA on October 3, 1995, 15 months after his admission. At the time, he was nearing the end of Phase II of the program. According to the testimony of Urbanek's probation agent, he had been told by ITPSA staff that the program was relocating, and that only those people who had moved on to Phase III would be allowed to continue with the program. Although many of the reports concerning Urbanek's treatment had been favorable, Urbanek's probation officer testified that Urbanek had been told before his October 1995 discharge that he would have to increase his level of participation in order to continue, and that he failed to do so.
The trial court issued an order committing Urbanek to the Department of Corrections for the 65-month sentence, and giving him credit for 409 days spent in jail, but denying credit for the ITPSA treatment in the security hospital. The trial court later issued a second order, following a hearing, denying Urbanek's motion to vacate the first order, but issuing findings of fact on the revocation issue.
DECISION
1. The trial court's decision to revoke probation will not be reversed absent a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980); State v. Ehmke, 400 N.W.2d 839, 840 (Minn.App. 1987). Although most revocations are based on the wilful conduct of the probationer, probation may also be revoked if the intended sentencing alternative becomes unavailable. See State v. Morrow, 492 N.W.2d 539 (Minn.App. 1992) (probation revoked because funding for treatment program could not be found); State v. Thompson, 486 N.W.2d 163, 165 (Minn.App. 1992) (treatment program to which defendant was sent as condition of probation became unavailable).
The record supports the trial court's determination that Urbanek failed to meet the ITPSA program's standard for continuation in the program. Urbanek may have been making satisfactory progress up until June of 1995, and the relocation of the program was a factor beyond his control. But under Morrow and Thompson, the trial court was not required to eliminate from consideration all factors beyond Urbanek's control before revoking probation. The plea agreement and sentence required that Urbanek complete ITPSA, not merely that he make a good faith effort to do so.
Urbanek argues that the trial court abused its discretion in failing to hold a dispositional hearing at which evidence of alternative treatment programs could be presented. But Urbanek could have presented such evidence at the probation revocation hearing. Urbanek has cited no authority holding that the state has a burden of showing that alternative treatment options have been explored, or that the court must do so on its own motion.
2. Urbanek argues that he was discharged from ITPSA because of changes in the program that were not contemplated at the time of the plea bargain, and therefore he is entitled to withdraw his guilty plea. This argument assumes that Urbanek was discharged due entirely to reasons beyond his control, without fault on his part. As discussed above, the trial court did not abuse its discretion in finding Urbanek willfully violated this condition of his probation. Moreover, the claim that the continuation of ITPSA at the same facility, with the same size program, was an essential term of the plea agreement, on which Urbanek had a right to rely, is without merit.
3. Urbanek argues that the trial court denied his right to be present when it failed to continue the hearing on the motion for reconsideration held in his absence. When Urbanek was sentenced, he was present, as required by Minn.R.Crim.P. 27.03, subd. 2.
Urbanek was also present at the probation revocation hearing. We find no right, explicit or implied, of a defendant to be present at a hearing on a motion for reconsideration of probation revocation.
4. Urbanek argues that the trial court should have granted his request for jail credit for the time he spent in the ITPSA program. He also argues that by extending his probationary jail term beyond one year, the trial court in effect "executed" his sentence, providing another basis for awarding jail credit for the ITPSA time.
A defendant is not entitled to jail credit for time spent in treatment, even in a locked security hospital such as St. Peter.
State v. Peterson, 359 N.W.2d 708, 710 (Minn.App. 1984), review denied (Minn. Mar. 13, 1985); see also Minn. Sent. Guidelines cmt. III.C.02 (credit should not be extended for time spent in residential treatment facilities as condition of probation); State v. Danh, 516 N.W.2d 539, 545 (Minn. 1994).
The trial court had no authority to deny Urbanek jail credit in 1994 against his probationary jail term. But Urbanek did not challenge the sentence, and has now received jail credit for all his time in the county jail. There is no support for Urbanek's theory that the denial of credit resulted in a de facto executed sentence in 1994, or that that would transform his time in treatment into prison time for which credit must be given.