Opinion
No. C6-01-2172.
Filed April 23, 2002.
Appeal from the District Court, Ramsey County, File No. K200338.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, (for appellant)
Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
The district court vacated appellant's stay of execution because it found that appellant violated the conditions of his probation. Appellant argues the district court abused its discretion by executing his sentences because the violations were excusable and the need for confinement does not outweigh policies favoring a continuation of his probation. Because we find no abuse of discretion, we affirm.
FACTS
The state charged appellant with two counts of second-degree criminal sexual conduct, violations of Minn. Stat. § 609.343, subd. 1(g) (1998), and a jury found appellant guilty of both counts. The district court imposed concurrent prison terms of 42 months and 54 months, stayed execution of the sentences, and placed appellant on probation for 25 years. The sentences constituted a double upward durational departure from the sentencing guidelines. In addition to other probation requirements, the district court ordered appellant to serve one year in the Ramsey County Correctional Facility as a condition of the stay.
Appellant previously appealed his convictions to this court arguing that the testimony of the two alleged victims was insufficient to support the convictions and that the double upward durational departures were not supported by aggravating circumstances. This court affirmed. The facts constituting the state's case against appellant are detailed in the unpublished opinion of this court. See State v. Abdeldaim, No. CX-01-442, 2001 WL 1356366 (Minn.App. Nov. 6, 2001), review denied (Minn. Jan. 15, 2002).
Appellant was released from the Ramsey County Correctional Facility on July 21, 2001. Appellant's probation officer directed him to report to the Union Gospel Mission (Mission), and to stay there until he could find suitable living arrangements. Appellant remained in contact with his probation officer until August 6, 2001. Between August 6 and August 19, however, appellant failed to contact his probation officer, failed to stay at the Mission, and was later found living in his uninhabitable home in St. Paul. He also admitted that he occasionally lived at a friend's house in Minneapolis. Appellant was also suspended from his sex-offender-treatment program because he failed to remit payment to the program.
On August 24, 2001, appellant appeared before the district court and admitted that he failed to remain in contact with his probation officer and that he was suspended from his sex-offender-treatment program, both violations of his probation. Appellant stated, however, that he was "willing to call [his] probation officer every single day, to go [to] her office every single day" if the officer wanted him to do so. The district court, over the state's objection, continued appellant's probation but ordered him to serve another 30 days in the Ramsey County Correctional Facility, subject to early release if suitable temporary living arrangements became available.
Appellant was released from the Ramsey County Correctional Facility on September 6 and was again directed to stay at the Mission until he could find suitable living arrangements. On September 10, appellant contacted his probation officer and told her that he was staying at the Mission. On September 14, to verify appellant's whereabouts, his probation officer telephoned the Mission and Mission employees told her that they had no record of appellant staying at the Mission since July 24. On September 17, appellant's probation officer confirmed this information after speaking with the manager of the Mission.
On September 21, 2001, a second probation-revocation hearing was held. Appellant waived his right to a contested hearing and admitted that he did not technically stay at the Mission after his September 6 release. Appellant argued that he was unable to procure a bed at the Mission through their lottery system; therefore, he would purchase tickets from those who were fortuitously assigned beds and would sign in at the Mission using their names. Appellant offered no corroborating evidence supporting any of his claims and attributed his failure to do so to the transient character of the Mission community. The district court revoked appellant's probation and executed his sentences. This appeal followed.
DECISION
Appellant argues the district court clearly abused its discretion when it revoked his probation and executed his sentences because the probation violations were excusable and the need for his confinement does not outweigh the policies favoring a continuation of his probation. We disagree.
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) (citations omitted). Before probation can be revoked,
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 need for confinement outweighs the policies favoring probation.
Id. at 250. Moreover, revocation of probation and execution of a probationer's sentence should not occur
unless the court finds on the basis of the original offense and the intervening conduct of the offender that:
(i) confinement is necessary to protect the public from further criminal activity by the offender; 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. at 251 (quotation omitted).
Appellant admitted what he deemed technical probation violations and waived a contested evidentiary hearing. Therefore, our only inquiry is whether the district court clearly abused its discretion when it found that appellant's violations were inexcusable and the need for his confinement outweighed the policies favoring a continuation of his probation. See State v. Xiong, 638 N.W.2d 499, 503 (Minn.App. 2002) (noting that when a probationer waives a contested hearing, "the state [is] no longer required to present clear and convincing evidence of the violations").
The district court did not make an explicit finding that the need for appellant's confinement outweighs the policies favoring probation. But we may still affirm the district court's revocation if there is sufficient evidence in the record to support the necessary findings. State v. Balma, 549 N.W.2d 102, 105 (Minn.App. 1996).
Appellant argues that his probation violations were excusable because he could not find adequate accommodations after his release from the Ramsey County Correctional Facility. Nevertheless, the record is clear that, notwithstanding appellant's alleged difficulty in finding a bed at the Mission, he represented to his probation officer that he was staying at the Mission without explaining that he would have to purchase tickets from other residents and sign in using their names. Moreover, the record is also clear that after September 10, appellant failed to contact his probation officer about his living arrangements. The Mission employees and manager stated that they did not have a record of appellant staying at the Mission and did not recall him staying there during this period. Appellant was on notice after the first probation-revocation hearing that he needed to remain in contact with his probation officer and truthfully represent his temporary living arrangements. This notice was unequivocal and not vague. See Austin, 295 N.W.2d at 251 (stating that a "probationer [must] reasonably be able to tell what lawful acts were prohibited"); State v. Bradley, 592 N.W.2d 886, 888 (Minn.App. 1999) (district court did not clearly abuse its discretion where probationer is given "a second chance to succeed on probation" and subsequently violates his probation), review denied (Minn. July 28, 1999); State v. Marti, 372 N.W.2d 755, 758 (Minn.App. 1985), review denied (Minn. Oct. 11, 1985) (same).
Therefore, we conclude the district court did not clearly abuse its discretion when it found that appellant's probation violations were inexcusable.
Appellant also argues the district court clearly abused its discretion because the need for appellant's confinement does not outweigh the policies favoring a continuation of his probation because his probation violations do not reflect additional criminal activity that threatened public safety. Appellant argues that his probation violations occurred because he did not take the required steps to communicate with his probation officer about his living arrangements and that the seriousness of his convictions will not be unduly depreciated if he is permitted to remain on probation. We disagree.
As the state has maintained since appellant's sentencing, the seriousness of appellant's underlying convictions should not be minimized. As noted in the earlier opinion of this court, the evidence at appellant's trial suggested that appellant engaged in multiple acts of criminal sexual contact with two vulnerable girls, ages 15 and 12, over an extended period. Appellant has not completed sex-offender treatment, another significant condition of his probation. Because of the nature and seriousness of appellant's convictions, knowledge of appellant's living arrangements is a significant public safety concern. Therefore, and contrary to appellant's argument, the mere fact that appellant's living arrangements were unknown during these periods threatened public safety. See Austin, 295 N.W.2d at 251 (probation may be revoked where an "offender's behavior demonstrates that he or she `cannot be counted on to avoid antisocial activity'" (quotations omitted)).
We conclude that because of the threat appellant poses to his community as an untreated sex offender who fails to maintain contact with his probation officer about his living arrangements, the need for appellant's confinement outweighs the policies favoring a continuation of his probation. Consequently, the district court did not abuse its discretion by revoking appellant's probation and executing his sentences.