Opinion
No. C0-00-522.
Filed August 15, 2000.
Appeal from Sherburne County District Court, File No. KX991253.
Mike Hatch, Attorney General, and
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, (for appellant)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 challenges the district court's order revoking the probation component of an aggravated DUI sentence. He argues that the district court abused its discretion in revoking probation merely because appellant used alcohol. The court held this use was in violation of the requirement that he abstain from alcohol use. Appellant notes, however, that following release from incarceration on the conviction, instead of being transported to the treatment program contemplated by the plea agreement and sentence, he was taken to another county to respond to a warrant. He argues that, in light of this fact, such revocation violates the public policy favoring probation. We affirm.
FACTS
On October 18, 1999, following a plea of guilty to aggravated driving while under the influence, appellant Gregory Pearson was given a one-year sentence with credit for time spent in custody. Pearson was to serve nine months and be given 30 days credit for successful completion of alcohol treatment. With the remainder of the sentence stayed, Pearson was placed on probation for four years. One of the conditions of his probation was that he not use or possess alcohol.
On December 17, 1999, Pearson was furloughed from incarceration to begin an alcohol-treatment program at Eden House in Minneapolis. Because of an outstanding warrant for his arrest in Kanabec County, he was taken there instead of Eden House. After serving his sentence there, he was released, only to volitionally return to the Kanabec County jail twice. On the first occasion, he asked for his wallet, which was being held as evidence in his Kanabec County case. The officers explained that they could not release his wallet to him. Because of his countenance, the officers suspected appellant had been drinking heavily and was possibly under the influence of methamphetamine. When Pearson again returned a few hours later, he still appeared intoxicated; he was unruly and made a significant disturbance at the jail. The officers subsequently contacted his probation officer, who told them Pearson would be violating probation by using alcohol. After placing Pearson in custody, the officers asked him to take a preliminary breath test. He refused, and expressed himself in a five-minute long scatological tirade.
"I don't need to f**k with your sh*t or you, you mother f**ker. You f**kers are f**king locking me for nothing. You're f**ked. When I talk to the judge about (inaudible) f**k you. And all you mother f**kers. You're f**ked, holding me here against my f**king will for nothing. I've already been here, what the f**k you, f**king re-release me. F**kers put me in jail for? Yeah, that's another f**king question you mother f**ker. Ever since I've been in one of these why you holding my f**king sh*t on me. Why'd you take my f**king property? Yeah, you f**king count that when you talk to my lawyer, you mother f**ker. F**k you. You're all f**ked. F**k you, f**king bag. You ain't getting sh*t, mother f**ker. Just like I said, you ain't got nothing, bitch. F**k you and you mother f**king court system. Cuz when I talk to the judge one day you're all f**ked. A legal f**king procedure, what, of what? You think it's funny, right?"
While his protest is no exhaustive panoramic of vocabulary, it is remarkable for the multitudinous use of a particular word operating as noun, verb, object, direct object, pronoun, predicate noun, demonstrative pronoun, adjective, imperative, indicative, subjunctive, and interjection.
On January 5, 2000, he contested his probation revocation at a hearing. The state presented the reports of the Kanabec County officers who had Pearson in custody after he was originally released and returned to press his demands. Pearson argued that his failure to report to Eden House was not a probation violation, but rather the result of being released in an unfamiliar county with no ready means of transportation. He further argued that the sentencing order did not prohibit him from consuming alcohol, and finally, that the state failed to even prove that he used alcohol.
The district court found that Pearson did not violate his probation with regard to his failure to attend treatment, but that his consumption of alcohol was a violation. Furthermore, the court found that Pearson was not amenable to probation, and that because of his significant history of DUIs, there was reason to believe that he would continue to drink and drive, even while on probation. The court concluded that his probation violations were intentional and inexcusable and accordingly revoked Pearson's probation. This appeal followed.
DECISION
A reviewing court will not reverse a decision to revoke probation unless there is a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). But "the decision to revoke must be based on sound judgment and not just the will of the trial judge." State v. Scholberg, 393 N.W.2d 247, 248 (Minn.App. 1986).
Before revoking probation, a court must:
1) designate the specific 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.
Austin, 295 N.W.2d at 250. Pearson does not challenge the court's findings with regard to the first two elements, but limits his challenge to the district court's balancing of policy considerations.
The balancing of policy interests is an element necessary to ensure that revocation is only used as a last resort. Id. The policy in favor of continued probation is rehabilitation; therefore, the district court must weigh this against the competing interest in confinement. Id. at 251. Revocation must not be a "reflexive reaction to an accumulation of technical violations." Id. There must, at least, be a showing that the probationer "cannot be counted on to avoid antisocial activity." Id. (quotation omitted). Furthermore, revocation followed by imprisonment should not occur unless the court finds, based on the original offense and the intervening conduct, that
(i) confinement is necessary to protect the public from further criminal activity * * *; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
Id.(quotation omitted).
That Pearson immediately resumed drinking upon release supports the district court's conclusion that he was not amenable to probation. Although the purpose of probation is rehabilitation, that process cannot be expected to work if a defendant will not comply with its strictures. This is not a close case where Pearson's violation was purely technical or where he had put forth significant effort to follow the conditions of his probation. Pearson deliberately marched into the county jail — drunk, belligerent, with total disregard for the conditions of his probation, and with the sole intent of causing a disturbance at the jail. And he did it not once, but twice.
Here, the district court found that, in light of his many DUI convictions and most recent abuse of alcohol, Pearson could not avoid his alcohol problems. Furthermore, the district court found that Pearson was at significant risk to again drink and drive. It is well within the district court's discretion to conclude, under these circumstances, that confinement is necessary to protect the public.
Pearson's argument that this court should repair to the Minnesota sentencing guidelines for the requisites of a proper revocation of a stayed sentence is fatuous. Those guidelines only apply to felony sentences, not to Pearson's gross misdemeanor conviction. Minn. Sent. Guidelines I.