Opinion
A15-1281
02-08-2016
State of Minnesota, Respondent, v. Doua Chang, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Elizabeth Lamin, Assistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Reyes, Judge Ramsey County District Court
File No. 62CR129947 Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Elizabeth Lamin, Assistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant argues that the district court abused its discretion by revoking his probation because his violations were not intentional and inexcusable and because the district court engaged in reflexive decision-making. We affirm.
FACTS
In 2001, a California juvenile court convicted appellant Doua Chang of felony assault with a deadly weapon and felony possession of a knife. Based on those convictions, he became ineligible to possess a firearm.
Appellant was living with his girlfriend, P.X., in St. Paul until February 2011, when she informed him that she was leaving him. In response, appellant punched her, put a handgun to her head, and threatened to kill her. He also forced her to consume alcohol after she informed him that she might be pregnant. P.X. called the police and reported the abuse once appellant passed out from consuming alcohol. The police obtained a search warrant and, while searching appellant's residence, recovered a "small caliber semi-automatic handgun."
Appellant was charged with being an ineligible person in possession of a firearm, second-degree assault, and terroristic threats. In June 2013, appellant waived his right to a jury trial, and the parties stipulated to the prosecution's evidence pursuant to Minn. R. Crim. P. 26.01, subd. 4. The state proceeded on the charge of possession of a firearm by an ineligible person and dismissed the other two charges. The district court found appellant guilty of possession of a firearm by an ineligible person. The district court granted appellant a downward dispositional departure and sentenced him to a 60-month prison term stayed and placed him on probation for 15 years. Appellant's conditions of probation required him to remain law abiding in all respects, refrain from using all mood-altering substances, including alcohol, and cooperate with random urinalysis testing and/or breathalyzer testing.
In January 2015, the Ramsey County Community Corrections Department (community corrections) filed a probation-violation report, alleging that appellant (1) failed to remain law abiding on January 5, 2015, by being charged with battery and criminal damage to property; (2) failed to remain law-abiding on January 16, 2015, by being charged with knowingly violating a domestic-abuse temporary restraining order; (3) failed to abstain from alcohol on January 5, 2015; and (4) failed to abstain from alcohol on January 16, 2015.
The violation of the temporary restraining order was against a Wisconsin complainant (complainant), who is not the same victim from this case. --------
At his probation-violation hearing in May 2015, appellant admitted to the violations with an explanation that there were extenuating circumstances due to a relationship problem, and he requested a second chance. Based on the testimony at the hearing from community corrections and appellant, including his admission to the violations, the district court found that he intentionally and inexcusably violated the terms of his probation by failing to remain law abiding based on two criminal offenses and using alcohol on two occasions. The district court also found that the need for confinement outweighed the policies favoring probation. The district court revoked appellant's probation and executed his sentence. This appeal follows.
DECISION
"A district 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. Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quotation omitted). If a district court finds that a defendant violated a condition of his probation after receiving a stay of execution, the court may either continue the stay and probation or revoke probation and execute the sentence. State v. Barrientos, 837 N.W.2d 294, 298-99 (Minn. 2013). "The decision to revoke probation cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he . . . cannot be counted on to avoid antisocial activity." Osborne, 732 N.W.2d at 253 (quotation omitted). "To revoke probation and execute the sentence, . . . the district court must make certain findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980)." Barrientos, 837 N.W.2d at 299. Specifically, the district court must find that (1) appellant violated a "specific condition or conditions" of his probation; (2) "the violation was intentional or inexcusable;" and (3) the "need for confinement outweighs the policies favoring probation." Austin, 295 N.W.2d at 250. Appellant argues that the evidence was insufficient to support the district court's findings on the second and third Austin factors.
Under the second Austin factor, the district court must find that the violations were "intentional or inexcusable." 295 N.W.2d at 250. Here, appellant admits to both of his convictions but explains that they were excusable because he damaged the complainant's door frame when he tried to retrieve his property, and he violated a no-contact order in response to the complainant's request to bring her medicine. On appeal, appellant does not provide any case law or evidence in support of his argument and purported explanation. Mere assertions of error not supported by authority cannot be considered on appeal except where prejudice is obvious. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). Moreover, the district court heard appellant's explanation but did not find it excusable and implicitly found his explanation not credible. We defer to the district court's credibility determination unless clearly erroneous. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Appellant has provided no argument as to why the district court's determination is clearly erroneous.
The district court found that the probation was revoked "because of the specific conditions of picking up these new offenses and also being under the influence [of alcohol] on two tests that were taken. . . .the [probation] violations were intentional and not excusable." Appellant does not address his violations for failing to abstain from alcohol. The district court did not err in finding that the second Austin factor was met.
The third Austin factor requires the district court to "find that [the] need for confinement outweighs the policies favoring probation." 295 N.W.2d at 250. A district court may satisfy the third Austin factor if any one of the following three sub-factors are met: (1) confinement is necessary to protect the public from further criminal activity by the offender; (2) the offender is in need of correctional treatment which can be most effectively provided by confinement; or (3) it would unduly depreciate the seriousness of the violation if probation was not revoked. Id. at 251. The district court found that the first and third sub-factors were met. Appellant maintains that the district court's findings were reflexive. We disagree.
When conducting an Austin analysis, a district court may not simply recite the three Austin factors and offer "general, non-specific reasons for revocation." State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005).
Here, the district court found:
because of public safety concerns... more specifically those that are involved in a relationship with you, that the need for confinement outweighs the policies favoring probation. I do think that confinement is necessary to protect individuals from further criminal activity by you, and also I do believe it would unduly depreciate the seriousness of these violations if your probation was not revoked today.After carefully reviewing both the presentence investigation for the underlying offense and the new violations, the district court noted the four separate violations on the record with respect to the first sub-factor. Appellant "continues to drink by virtue of what we find in two. . . [preliminary breath tests.] One is a 0.18. The other is a 0.13. . . . The allegations in the violation, which apparently now have become convictions, did arise in another domestic situation where domestic violence did occur." The record supports the district court's specific findings that confinement is necessary to protect the public from further criminal activity by appellant.
In support of the district court's findings on the third sub-factor, that continued probation would unduly depreciate the seriousness of the violation if probation was not revoked, the court stated:
I was very reluctant to dispositionally depart in this matter, but again because I was hoping that what arose in California was just a lapse of judgment of a young person, I provided [appellant] the opportunity. . . . So unfortunately, I don't find that [appellant] is suitable to be continued on probation. I will admit that oftentimes I'll say if I dispositionally depart when I'm reluctant to do so that I'm going to give a person the opportunity to prove me wrong, but I hope that no more harm is done to any other individual in the course of that. And unfortunately, in hindsight now, it would have been the better course if I had not provided [appellant] with that opportunity because further harm did come to another individual in the community.The district court found that "it would unduly depreciate the seriousness of these violations if appellant's probation was not revoked." The record supports this conclusion. The district court made the required specific findings under Austin's first and third sub-factors and did not abuse its broad discretion when it revoked appellant's probation. Osborne, 732 N.W.2d at 253.
Affirmed.