Opinion
No. C1-01-829.
Filed September 18, 2001.
Appeal from the District Court, Todd County, File No. K799517.
Mike Hatch, Attorney General, and Gaylord Saetre, Todd County Attorney, Jane M. Gustafson, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Dwight Nokes challenges the district court's revocation of his probation and execution of a 48-month prison sentence for third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1(d) (1998). Appellant violated the conditions of his probation by not completing the treatment program. On appeal, he claims that because this is his first probation violation, public policy favors continuing his probation. Because the district court did not abuse its discretion in revoking probation, we affirm.
DECISION
A 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) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)), review denied (Minn. July 20, 1995). The three-part analysis for revocation requires the district court to designate the specific conditions that were violated, find that the violation was intentional or inexcusable, and find that the need for confinement outweighs the policies favoring continued probation. Austin, 295 N.W.2d at 250.
As to the first two Austin requirements, the district court found that appellant willfully and intentionally violated the conditions of his probation. The court noted that after several warnings, appellant remained uninvolved in the treatment program, thus failing to complete the program. Appellant admits that not completing the treatment program was a violation of his probation. Appellant's case rests on a challenge to the third Austin requirement. Appellant argues that public policy favors his continued probation because this was his first violation and revocation should be the last resort.
When a probation violation is found, the district court must then consider several policy factors and determine whether revocation is the proper result:
In some cases, policy considerations may require that probation not be revoked even though the facts may allow it * * * . The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. There must be a balancing of the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety.
Austin, 295 N.W.2d at 250-51 (citation omitted).
Appellant did not complete the treatment program required by his probation because he refused to admit to the crime. It is generally accepted that willingness to discuss and accept responsibility for offenses is critical to successful treatment. See In re Welfare of J.W., 415 N.W.2d 879, 884 (Minn. 1987) (concluding that therapy, without admission of wrongdoing, may be ineffective and fail to rehabilitate abusive parents). The conditions of probation were clearly set out for appellant during the plea hearing. The state made the agreement based on appellant's amenability to treatment, and appellant accepted the agreement understanding that it included completing the mandatory treatment program.
Appellant went to the treatment facility for four or five sessions; however, when called on to discuss his situation, appellant claimed that his conviction was under appeal and he could not discuss the details of the case. No appeal was ever filed in the case. Attending therapy sessions as a passive participant does not advance the purpose of treatment. See State v. Moot, 398 N.W.2d 21, 24 (Minn.App. 1986) (balancing revocation decision in favor of incarceration, where probationer refused to comply with treatment program), review denied (Minn. Feb. 13, 1987). The failure to follow the conditions of probation despite repeated warnings is an indication that probation has not succeeded. Theel, 532 N.W.2d at 267.
The treatment counselor, who is also appellant's probation officer, repeatedly informed appellant that completion of the treatment program required that he admit to the crime and participate in the group discussions. We have affirmed a district court's revocation of probation where the defendant was terminated from his first program because his response to treatment was poor, the defendant was considered unamenable to treatment in another program, and the decision to revoke probation was supported by testimony from a probation officer and two experts. State v. Hemmings, 371 N.W.2d 44, 47 (Minn.App. 1985); see also State v. Marti, 372 N.W.2d 755, 759 (Minn.App. 1985), review denied (Minn. Oct. 11, 1985). Similarly, we conclude that the counselor here made reasonable efforts to break down appellant's denial.
Although appellant agues that he should be allowed to go to an alternative treatment facility where he would not be required to admit to the crime, he failed to offer or identify such an alternative program.
We therefore conclude that the district court did not abuse its discretion by revoking appellant's probation.