Opinion
No. C7-97-618.
Filed November 10, 1997.
Appeal from the District Court, Otter Tail County, File No. K5-96-2121.
Hubert H. Humphrey III, Attorney General, and Waldemar B. Senyk, Otter Tail County Attorney, Barbara R. Hanson, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Jerome Mindermann challenges the trial court's revocation of his probation due to his excessive absenteeism from a sexual treatment program. We affirm.
FACTS
In April 1996, appellant pleaded guilty to criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(g), 2 (1996), and was sentenced to 145 months in prison. Primarily relying on the victim's request, the trial court found that a stay of execution was in the best interest of the victim and her family, and appellant was placed on probation with the conditions that he serve one year in jail and complete sex offender treatment. Notwithstanding being warned that his probation would be revoked for any violation, appellant was absent 13 out of 24 treatment sessions and only notified his social worker twice that he would be absent.
The details of the underlying intrafamilial sexual abuse are set forth in the record.
In January 1997, a probation revocation hearing was held. Appellant explained that his absenteeism was due to either out-of-town work or a combination of a kidney infection and the stomach flu. He also stated that because he did not have a telephone or there was no answer when he did call, he was unable to notify his social worker that he would be absent. The trial court revoked probation, finding that appellant's absenteeism was inexcusable and in violation of his probation. This appeal followed.
Appellant never saw a physician. He diagnosed himself as having a kidney infection and then treated himself with unprescribed antibiotics.
DECISION
The trial court has broad discretion to determine whether sufficient evidence exists to revoke probation and its decision should not be reversed unless there is a clear abuse of discretion. State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1980). Prior to revoking probation, "the 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 the need for confinement outweighs the policies favoring probation." Id. at 250.
Apparently conceding that the trial court complied with the first step of the Austin analysis, appellant contends that the second requirement was not met because the state did not offer evidence that the social worker's phone was always answered, that the appellant was not sick, or that the appellant had a telephone. But nonresponsiveness to treatment or unwillingness to work with a treatment program is adequate grounds for revocation of probation. State v. Rock , 380 N.W.2d 211, 213 (Minn.App. 1986), review denied (Minn. Mar. 27, 1986). It is not unreasonable to conclude that treatment has failed when the probationer fails "to take advantage of the opportunity or to show a commitment to rehabilitation." Austin , 295 N.W.2d at 251.
Moreover, appellant's argument is undermined by the fact that while he stated he was too ill to attend counseling sessions, he was able to meet with his probation officer during that same period on a biweekly basis. Additionally, appellant's testimony that he did not have a telephone is contradicted by his testimony that he did not get an answer on the several occasions he called.
Acknowledging his probation violations, appellant contends that at least one additional attempt at rehabilitation through renewed treatment should have been made. Appellant relies on Minn. Sent. Guidelines III.B., which provides that revocation of a stayed prison sentence is justified when, "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay." But considering whether the need for confinement outweighs the policies favoring probation after the offender has violated a condition of probation, the supreme court has held that revocation is appropriate if "it would unduly depreciate the seriousness of the violation if probation were not revoked." Austin , 295 N.W.2d at 251 (citation omitted).
In this case, revocation was based on the trial court's conclusion that policy considerations favored confinement as probation was not succeeding and the seriousness of the violation would be unduly depreciated if probation were not revoked. The trial court made the required findings that "the need for confinement outweigh[ed] the policies favoring probation" and the record supports a finding that the seriousness of appellant's violation "would be denigrated if probation were not revoked." Austin , 295 N.W.2d at 250-51.
The trial court did not address whether appellant is amenable to treatment, but under Austin that is only one of the factors to be considered and it is not dispositive.