Opinion
No. A05-2005.
Filed July 18, 2006.
Appeal from the St. Louis County, District Court, File No. K6-03-300928.
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Mn 55101; and Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, 1810 12th Avenue East, 107D Courthouse, Hibbing, Mn 55746 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, Mn 55414 (for appellant)
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
On appeal from an order revoking probation, appellant argues that the district court's findings were inadequate because the district court failed to make a finding that appellant's alleged violations were intentional or inexcusable and failed to make a finding that the need for confinement outweighed the policies favoring probation. We affirm.
DECISION
In a contested probation-revocation hearing, the district court must make "written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court's reasons for its determination." Minn. R. Crim. P. 27.04, subd. 3(4). Before revoking probation, a district 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 need for confinement outweighs the policies favoring probation." State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). A district court's determination that sufficient evidence exists to revoke probation will be reversed only for an abuse of discretion, but whether the district court made the required Austin findings is a legal question, which this court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
Appellant Christopher L. Manska first argues that the district court erred by failing to make a finding that appellant's probation violations were intentional or inexcusable. "The `written findings' requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review." Id. at 608 n. 4.
Here, conditions of appellant's probation included that he stay alcohol- and drug-free; submit to drug testing; have no same, similar, or lesser charges; and drive only with a valid driver's license and insurance. Appellant allegedly violated his probation after being charged with fleeing a police officer and driving after revocation, using marijuana and consuming alcoholic beverages, and driving without a valid driver's license and insurance. During appellant's revocation hearing, a police officer testified that appellant was driving a snowmobile on a bike trail where snowmobiles are not permitted. The officer testified that he believed that appellant was under the influence because appellant's eyes were bloodshot, he was unsteady, his speech was slurred, and he performed poorly on a horizontal-gaze-nystagmus test. When the officer went back to his squad car, appellant fled on his snowmobile. The district court stated, "[T]he driver's license didn't mean anything to you, the no drink, no smoking pot, didn't mean anything to you[.]" The district court further stated, "Obviously the court has found that this violation of probation is serious enough for [appellant] to have his probation revoked and to be sent to prison." Although the district court did not use the words "intentional" or "inexcusable," the district court implicitly found that appellant's probation violations were intentional or inexcusable.
Appellant next argues that the district court failed to make a finding that confinement outweighed the policies favoring probation. Based on the record, the district court satisfied the third Austin factor. First, the district court stated that at the 2004 sentencing, appellant's probation officer recommended that appellant's sentence be executed largely because of appellant's extensive criminal history and prior probation violations. Appellant's presumptive sentence — 72 months in prison for first-degree test refusal, and 19 months in prison for fleeing a police officer in a motor vehicle — was based on one custody-status point, because appellant was on parole/supervised release, and six criminal-history points. Second, the district court pointed out that at the time of sentencing the court considered appellant amenable to probation; indicating that that was not the case any longer. Finally, the district court warned appellant that if he was unable to stay sober he was going to reoffend and emphasized how critical it was for appellant to remain sober and that a relapse would be a danger to the public. The district court found that appellant's failure to maintain sobriety is "itself serious" and that appellant's driving behavior after fleeing the police officer, "crossing a 4-lane, Interstate Highway and operating at speeds up to 80 miles an hour . . . speaks of being a danger to public safety." Thus, the district court made adequate findings that confinement outweighed policies favoring probation by finding that appellant was a danger to public safety.
Appellant also argues that there is inadequate evidence to prove the alleged violations because the revocation hearing was held before the new charges were resolved. The district court ruled that there was clear and convincing evidence that appellant violated his conditions of probation that appellant remain alcohol- and drug-free and that appellant not drive without a license or insurance. First, the police officer testified that he believed that appellant was driving while under the influence because appellant's eyes were bloodshot, he was unsteady, he slurred his speech, he performed poorly on the field sobriety test, and appellant admitting to consuming a few beers. The district court determined that the officer's testimony was "uncontradicted," and this court is not in a position to challenge the district court's credibility determinations. See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) (stating that appellate courts defer to the fact-finder's determinations regarding the weight and credibility of individual witnesses). Second, appellant admitted to his probation officer that he had smoked marijuana. Appellant's counsel argued that appellant's marijuana use should not constitute a violation because marijuana use is not necessarily a crime, but a condition of appellant's probation was to remain drug-free. Finally, appellant's probation officer testified that appellant's license was cancelled. There is sufficient evidence in the record to support the district court's decision.
Appellant also argues that his violations were merely technical violations. "[A]n accumulation of technical violations" should not be the basis for probation revocation. Austin, 295 N.W.2d at 251. The violations should demonstrate that the offender "cannot be counted on to avoid antisocial activity." Id. Here, the district court stated:
[I]f somebody on a felony probation has a couple of beers and smokes a little bit of pot and gets a traffic offense that that in itself is not going to be so serious as to send him to prison. However, when you look at it in the context of this case and looking at what happened back in April of 2004 when [appellant] was sentenced, that under the circumstances here any continuing failure of him to maintain sobriety is in itself serious.
Thus, in a different situation appellant's violations may not justify revocation, but here, revocation was justified because of appellant's history and the nature of his violations. The district court did not revoke appellant's probation for mere technical violations.
Finally, appellant has submitted a pro se brief arguing that (1) his due-process rights were violated when he was not brought before a judge on his warrant within 36 hours; (2) he was not made aware of a five-year conditional-release period when he pleaded guilty; (3) the officers were not credible; (4) he was never read his Miranda warning after he turned himself in; (5) he never saw a videotape from the officer's squad car; (6) there is new evidence; and (7) the district court did not have subject-matter jurisdiction (a jurisdiction issue different from the issue appellant raised during his hearing that the district court lacked jurisdiction because the statutes under which he was charged did not have enacting clauses), and venue was improper.
First, while appellant was not brought before a judge within 36 hours, he was being held on new charges and the original warrant had been quashed. Second, the remaining issues were not raised in the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that an appellate court will not generally decide issues not raised to the district court). Moreover, the issues appellant presents have not been briefed and do not have any cited support. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating that assignment of error based on mere assertion but unsupported by argument or authority is waived unless error is obvious on mere inspection). Thus, appellant's pro se brief presents meritless arguments.