This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Teon Gregory Anderson,
Filed July 3, 2000
Sherburne County District Court
File No. K9961620
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.
Appellant Teon Gregory Anderson appeals from an order revoking probation and executing his sentence for second-degree criminal sexual conduct. He argues that there was insufficient evidence that he intentionally violated the conditions of his probation by failing to make restitution payments, not obtaining employment, and being discharged from his sex offender treatment program. Appellant also argues that because he had been accepted into a different treatment program, there were alternate measures, other than imprisonment, available. We affirm.
On March 12, 1997, a jury convicted appellant of six counts of criminal sexual conduct. The presumptive sentence under the guidelines was a commitment for 68 months. On April 18, 1997, the district court imposed a sentence that departed downward both with respect to disposition and duration, imposing 48 months and staying execution. The court also stayed imposition of sentences on two other counts. Appellant was released on probation with several conditions, including obtaining sex offender treatment, avoiding controlled substances, and paying restitution and fines.
Appellant’s probation officer filed his first violation report on May 13, 1998, alleging appellant failed to obtain treatment and pay restitution. After a hearing on October 22, 1998, the district court determined appellant had violated his probation. At that time, the district court gave appellant a second chance. Appellant was required to serve 120 days in jail and then his probation was continued, but his stays of imposition were changed to stays of execution of two consecutive 18-month prison sentences.
On May 10, 1999, appellant’s probation officer filed a second violation report alleging that appellant used marijuana and was continuing in his failures both to obtain treatment and to pay restitution. Appellant admitted to using marijuana, only attending four counseling meetings over three years, and to paying only part of the restitution required. But he presented evidence that he did not seek treatment or pay restitution because he could not afford it. Appellant also argued that after the violation report was filed, he found work through a temporary employment agency and had arranged for admission to a new treatment center.
The district court found that appellant intentionally and inexcusably violated the conditions of his probation, was no longer amenable to probation, and the need for confinement outweighed the policies favoring probation. Appellant appeals, arguing the district court erred in revoking his probation because his inability to pay for treatment and restitution was beyond his control. Appellant further argues the revocation was based on his indigent status and thus violated his due process rights.
The district court has broad discretion in determining if there is sufficient evidence to revoke probation, and this court will not reverse that decision absent a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980); State v. Morrow, 492 N.W.2d 539, 543 (Minn. App. 1992). To revoke probation, the district 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 the need for confinement outweighs the policies favoring probation.
Austin, 295 N.W.2d at 250.
Appellant argues that, except for the chemical use, his violations were the result of financial difficulty beyond his control, and therefore were not intentional. However, the record shows that the current violation is appellant’s second probation violation for failing to obtain treatment, and although a treatment program had accepted him, appellant missed or canceled most of the appointments he made. Appellant was terminated from the treatment program for a number of reasons: he missed appointments, showed little interest in treatment, considered himself a victim, and failed to pay his bill. Only the last reason was caused by his financial circumstances. Thus, appellant’s failure to complete treatment was only partially due to inability to pay, and the district court can use failure to pay for treatment as the sole ground to revoke probation. Morrow, 492 N.W.2d at 546-47 (holding when court gives dispositional departure and places defendant on probation, it does not violate due process to revoke probation for failure to obtain treatment because funds were not available). The district court did not abuse its discretion in determining appellant’s violations were intentional and inexcusable.
The record also supports the district court’s finding that the need for confinement outweighed the policies favoring probation. The original offense called for a commitment, but appellant was given a downward dispositional departure because the district court considered him to be a good candidate for probation and treatment. Appellant turned out to be neither. The evidence shows appellant demonstrated an unwillingness to participate conscientiously in his probation by failing to attend and complete his sex-offender treatment. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding failure to follow district court’s order indicates probation not successful), review denied (Minn. July 20, 1995); 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). Moreover, appellant continued to violate his probation even after a prior hearing on similar violations resulted in the district court imposing a jail sentence and changing appellant’s stays of imposition to stays of execution.
The district court did not make a reflexive decision to revoke probation for technical violations. It carefully considered the options and determined appellant had not cooperated in his probation and was not amenable to further probation. The district court did not abuse its discretion in revoking appellant’s probation.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.