This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1080

State of Minnesota, ex rel.

Chance Ute Larsen,

Appellant,

 

vs.

 

Sheryl Ramstad-Hvass

Commissioner of Corrections,

Respondent.

 

 

Filed October 3, 2000

Affirmed

Toussaint, Chief Judge

 

Anoka County District Court

File No. C400437

 

David Thomas Connor, Legal Advocacy Project, Catheryn Middlebrook, Legal Assistance to Minnesota Prisoners, 2829 University Ave. S.E., Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Minnesota Attorney General, Kari Josephine Ferguson, Assistant Attorney General, Suite 1100, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Toussaint, Chief Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal is from an order denying a petition for a writ of habeas corpus challenging the Department of Corrections’ (DOC) revocation of appellant Chance Larsen’s supervised release.  Because the record supports the district courts revocation of appellants supervised release, we affirm.

FACTS

            Larsen was convicted in 1996 and sentenced in Anoka County to 33 months for second-degree criminal sexual conduct.  The conviction followed two 1995 convictions and sentences, also for second-degree criminal sexual conduct.  The convictions all involved sexual molestation of young boys. 

            When Larsen was released on supervised release, the DOC required that he comply with several conditions of release, including that he enter and complete programming at Damascus Way, a halfway house, and that he abstain from “use or possession of pornographic materials.”  Larsen was jailed in Anoka County to face charges for threatening letters he had written from prison.  While Larson was in jail, the staff at Damascus Way received a package addressed to Larsen.  They called Larsen and informed him of the package’s arrival, and Larson gave them permission to open it.  The package contained materials from the North American Man Boy Love Association (NAMBLA).

            Damascus Way terminated Larsen from its program for “possession of contraband.”  The DOC then sought revocation of Larsen’s supervised release, alleging that he had possessed pornography and been terminated from Damascus Way, both in violation of his conditions of supervised release.  The hearing officer agreed and revoked supervised release.  Larson filed a petition for habeas corpus challenging the revocation, but the district court denied the petition, concluding that Larsen constructively possessed pornography and, in being terminated from Damascus Way, committed an independent violation.

D E C I S I O N

            In an appeal from an order deciding a petition for writ of habeas corpus, this court gives great weight to the district court’s findings, which will be upheld if supported by the evidence.  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998).  Questions of law are reviewed de novo.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

            Larsen argues that the revocation of his supervised release was improper because the evidence did not establish that he possessed pornography. He also argues that his termination from Damascus Way cannot support revocation because it was based on an incorrect legal assumption that Larsen did possess pornography.

            We conclude that the district court’s finding that Larsen’s termination from Damascus Way warranted revocation is amply supported by the record.  Therefore, we need not decide whether Larsen was in constructive possession of materials legally classifiable as pornography.

            In a number of cases, probation has been revoked because an offender has failed in a treatment program that he was required to complete as a condition of probation.  See, e.g., State v. Muhlenhardt, 403 N.W.2d 638, 639 (Minn. 1987) (holding revocation of defendant who did not make good faith effort to gain admission to treatment program was proper).  Probation may be revoked even though an offender’s failure in treatment is not due to criminal, or even egregiously improper behavior.  See State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986) (affirmed revocation after defendant took job that interfered with his treatment schedule), review denied (Minn. Feb. 13, 1987); State v. Marti, 372 N.W.2d 755, 758-59 (Minn. App. 1985) (affirming revocation for failure to complete treatment of offender who failed to “internalize” positive changes and deflected discussion of his sexual behavior), review denied (Minn. Oct. 11, 1985).  Failure to complete treatment is grounds for revocation even if treatment fails for lack of funding.  State v. Morrow, 492 N.W.2d 539, 543-44 (Minn. App. 1992).

            Larsen is a convicted sex offender with a history of molesting young boys.  He was required as a condition of supervised release to complete the Damascus Way treatment program, not merely to avoid criminal behavior, such as possession of child pornography, while in the program.  As in the probation revocation cases, we do not second-guess the decisions of treatment program staff, nor require proof beyond a reasonable doubt of facts constituting a criminal offense.

            The NAMBLA materials, even if not legally classifiable as “pornography,” relate directly to the offensive behavior for which Larsen had been convicted—sexual conduct with young boys.  Damascus Way could legitimately have terminated Larsen for receiving them in the mail, even if he did not personally open the package.  Larsen admitted knowing the person who mailed the materials to him.  The treatment program staff could certainly have concluded that the incident made Larsen an unfit candidate for treatment.  Larsen has not submitted any evidence indicating that the termination violated the rules or policies of Damascus Way.

            Affirmed.