Opinion
No. C4-97-1547.
Filed December 2, 1997.
Appeal from the District Court, Ramsey County, File No. K5-96-2725.
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, (for appellant)
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Jeffery Shanklin asserts that the district court abused its discretion in revoking his probation for violating a condition of probation and executing his previously stayed presumptive prison sentence. We affirm.
FACTS
Shanklin pleaded guilty to the charge of first degree criminal sexual conduct for engaging in sexual intercourse with a 12-year-old girl. The district court imposed the presumptive sentence of 86 months imprisonment, but departed dispositionally by staying execution of the sentence and placing Shanklin on probation for up to 30 years. Among the conditions of Shanklin's probation were that he (1) serve one year in the Ramsey County jail, (2) report to his probation officer and remain truthful in all matters, (3) submit to DNA testing and register as a sex offender, (4) complete a sex offender treatment program, (5) and have no unsupervised contact with any minor females unless approved by his probation officer.
Shanklin served his jail term and was ordered by his probation officer to stay at Re-Entry West (a transitional residence) until a vacancy occurred at Alpha's residential sex offender treatment program. On June 9, 1997, however, Shanklin was terminated at Re-Entry West for poor adjustment to its program. The reasons for his termination included Shanklin's failure to follow staff directions, skipping work, and threatening another resident.
At the probation revocation hearing, Shanklin admitted that he had violated the terms of his probation by being terminated at Re-Entry West. The probation officer recommended that the district court execute Shanklin's sentence because of Shanklin's failure to fulfill probation conditions and the seriousness of the underlying causes.
The district court found that Shanklin had violated the terms of probation without reasonable excuse or justification and that the need for confinement outweighed any policies favoring probation. The district court then ordered execution of the sentence. This appeal followed.
DECISION
"The district court has broad discretion when deciding whether to revoke probation and will be reversed `only if there is a clear abuse of that discretion.'" State v. Theel , 532 N.W.2d 265, 266-67 (Minn.App. 1995), review denied (Minn. July 20, 1995) (quoting State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1980)). When revoking probation, the district court must designate the specific condition that was violated, find that the violation was inexcusable or intentional, and find that the need for confinement outweighs the policies supporting probation. Austin , 295 N.W.2d at 250.
Although Shanklin concedes that he violated the terms of his probation by being terminated from Re-Entry West, he argues that he did not violate the probation condition of completing a sex offender treatment program because he never had the chance to begin the program. The record demonstrates, however, that he violated a probation condition that was a precursor to satisfaction of the condition that he complete sex offender treatment. Shanklin's unacceptable behavior at Re-Entry West that led to his termination was inexcusable; and far from a mere technical violation of his probation, it indicates that probation was not succeeding.
Shanklin primarily challenges the district court finding that his need for confinement outweighed the policies favoring probation. To support his position, Shanklin cites language from Austin that
[t]he decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he or she cannot be counted on to avoid anti-social activity.
Id. at 251 (citation omitted).
Antisocial activities, including threatening another resident and noncooperation with staff at Re-Entry West, were the very reasons that Shanklin was terminated from the program. If Shanklin could not be relied on to behave in a minimally adequate manner so as to avoid termination from a transition program such as Re-Entry West, his prospects for successfully completing a sex offender treatment program, even if given another chance, are dubious.
As emphasized by the probation officer at the revocation hearing, the pre-sentence investigator had recommended that the district court execute the presumptive sentence of 86 months and had stated that there appeared to be no substantial and compelling mitigating factors warranting a dispositional departure. Nonetheless, the district court accepted a plea bargain and accordingly stayed execution of Shanklin's presumptive prison sentence so that Shanklin, among other things, could participate in sex offender treatment and thereby avoid prison. The district court thoroughly warned Shanklin at sentencing that he had to comply fully with each probation condition or his stayed sentence would be executed.
We conclude that the district court did not abuse its discretion by revoking Shanklin's probation and executing his stayed prison sentence. See Minn. Stat. § 609.14
(1996) (permitting court to continue or revoke probation and to execute previously stayed sentence where defendant violates a condition of probation).