Opinion
No. A04-225.
Filed September 21, 2004.
Appeal from the District Court, Beltrami County, File No. K0-92-1183.
Mike Hatch, Attorney General, and Timothy R. Favor, Beltrami County Attorney, (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant)
Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges the district court's order revoking his probation and executing his sentence for a first-degree controlled-substance violation. Appellant argues that his conceded probation violations were technical or insignificant and that the district court failed to consider mitigating factors favoring reinstatement of probation rather than execution of the sentence. We affirm.
FACTS
In June 1995, appellant Robert E. Adams pleaded guilty to one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(3) (1994). At sentencing — delayed for more than a year because of appellant's failure to appear — the district court sentenced appellant to 110 months in prison but stayed execution of the sentence for ten years subject to various conditions of probation, including that appellant pay restitution and a fine, report to his probation officer as required, and remain law-abiding.
In August 1997, the Department of Corrections recommended that the district court vacate appellant's stay of execution because appellant had failed to pay any amount of restitution or fines; maintain contact with his probation agent; inform his probation agent of a July 1997 arrest for a fifth-degree controlled-substance offense and subsequent failure to appear in a scheduled hearing related to that arrest; or remain law-abiding. The district court vacated the stay of execution and issued a warrant to arrest appellant, who absconded until his arrest three years later, when the district court reinstated his probation subject to the existing conditions and an additional condition that he meet with a probation agent immediately upon release.
Appellant briefly maintained contact with his probation officer and then absconded again. In January 2001, appellant was arrested and charged with giving a false name to a police officer; he was subsequently convicted of the offense and sentenced to jail time and a fine, but absconded before reporting to jail. In January 2002, after receiving another report from the Department of Corrections stating that appellant had not complied with any of the original conditions of probation, the district court ordered that appellant's stay of execution be revoked and that appellant be arrested. Appellant again disappeared, was arrested in October 2003, and appeared before the district court in November.
At the November 2003 hearing, the district court found on the record that appellant "[did] absolutely nothing to comply with conditions of probation"; that appellant's behavior was intentional and not negligent; and that appellant's "interests in freedom and the policies favoring probation [were] outweighed by the need to confine [him] and the State's interest in insuring [his] rehabilitation." Appellant admitted all of the violations, except for the failure to complete a chemical-dependency evaluation, explaining that the violations were not intentional or inexcusable. The district court ordered appellant's stay of execution vacated and the sentence executed. This appeal follows.
DECISION
Although the State of Minnesota did not file a brief, this appeal is determined on its merits. See Minn. R. Civ. App. P. 142.03. If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed. Minn. Stat. § 609.14, subds. 1(a), 3 (2002). "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). To revoke probation, the district court must (1) designate the specific condition(s) 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. Id. at 250.
Appellant argues that the state has failed to prove that the need to have him confined outweighs policies favoring probation because his conceded probation violations were not intentional and inexcusable. Appellant specifically contends that execution of his sentence is inappropriate because he had already been on probation for seven years; was never furnished a precise schedule for payment of his restitution and fines; was willing as of the date of his revocation hearing — as he had not been earlier — to follow the recommendations of his chemical-dependency evaluation; his employment had prevented him from remaining in contact with his probation agent; and his conviction during his probation was for a "relatively minor" offense (giving a false name to an officer).
Appellant's arguments have no merit. As the district court observed at appellant's second probation-violation hearing, there is no evidence that appellant ever complied with any of the conditions of his October 1996 probation with the exception of completing a chemical-dependency evaluation, the recommendations of which he ignored. The record is clear that appellant's whereabouts were unknown to the Department of Corrections for the vast majority of the period between his guilty plea and final probation-revocation hearing. It is true, as appellant argues, that the executed sentence imposed by the district court — 110 months — is lengthy. But the district court executed the sentence only after reinstating probation once and presiding over two probation-revocation hearings, at the second of which it pronounced itself "floor[ed]" that "with a 110-month sentence hanging over [his] head that [appellant] would do absolutely nothing to comply with conditions of probation." The record provides clear and convincing evidence supporting the district court's decision to revoke appellant's probation. We have also considered the issues raised by appellant in his pro se supplemental brief and find them to be without merit.