This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1156

 

 

State of Minnesota,

Respondent,

 

vs.

 

Roger Allen Berres,

Appellant.

 

 

Filed December 18, 2001

Affirmed

Mulally, Judge*

 

 

Ramsey County District Court

File No. K6001413

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and

 

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN† 55102 (for respondent)

 

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN† 55414 (for appellant)

 

 

††††††††††† Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.

U N P U B L I S H E D†† O P I N I O N

MULALLY, Judge

††††††††††† Appellant challenges the district courtís order that revoked his probation and executed his sentence for second-degree criminal sexual conduct, arguing that he was ordered to complete a sex-offender treatment program that was inappropriate for him based on his mental-health issues.† Appellant therefore argues that there was insufficient evidence for the district courtís finding that he violated his probation terms by failing to successfully complete the program without a reasonable or justifiable excuse.† Appellant also argues that the court should have revoked his probation only as a last resort and that his confinement does not outweigh the policy favoring his continued probation.† Because we conclude the district court properly found that appellant violated his probation terms without a reasonable or justifiable excuse, and the court properly revoked appellantís probation, we affirm.

FACTS

††††††††††† In June 2000, appellant Roger Allen Berres pleaded guilty to second-degree criminal sexual conduct.† He was sentenced to 27 months in prison, execution stayed, and 25 years of probation.† Under the terms of appellantís probation, he was required to follow the standard probation conditions and abstain from using drugs, alcohol, and mood-altering drugs unless prescribed by a licensed physician; follow all of his probation officerís directives with respect to chemical-dependency treatment and counseling; follow the directives of the sex-offender evaluation; participate in a chemical abuse program while serving 120 days in jail; submit to DNA testing; and register as a sexual offender.† Appellant has an extensive history of alcohol abuse.† Accordingly, the sex-offender evaluator recommended that appellant deal with his chemical dependency and achieve sobriety before attempting to address his sex-offender treatment.† The evaluator recommended that appellant complete an outpatient sex-offender treatment program through Project Pathfinders after appellant completed his chemical-dependency treatment.

††††††††††† Soon after appellant began to serve his jail time, he met with his probation officer, Kenneth Jones.† Jones informed appellant that he had to complete the Twin Town chemical-dependency treatment program and the Project Pathfinders sex-offender treatment program upon his release from jail.† After discussing his probation terms, appellant signed a probation agreement.† Project Pathfinders has a pre-sex-offender treatment program for individuals who are in jail to prepare them for community-based treatment upon release.† Appellant attended all of his individual sessions but refused to attend the group sessions.† During appellantís individual sessions, his counselor diagnosed him with depression, and appellant was prescribed antidepressant medications.

Before appellantís release from jail in August 2000, he met with Jones to discuss his upcoming treatment plan and prospective employment.† After appellant was released, he met with Jones several times to discuss his progress.† Appellant also began meeting with Patricia Buschmann at Project Pathfinders so that Buschmann could complete appellantís initial assessment and diagnosis.† Appellant informed Jones that his meetings were going fine and that he had no problems.† In December 2000, appellant completed the Twin Town chemical-dependency treatment program.† In February 2001, however, appellant met with Jones again and informed him he had been terminated from the Project Pathfinders program.† Appellant told Jones that he was making an appointment with an independent sex-offender treatment program, which he planned to pay for by taking out a loan.† Jones told appellant that he could not guarantee that the independent program would be appropriate.† Jones also told appellant that he would not file a probation-violation report until he had heard from Buschmann.

Buschmann gave Jones a report, based on her four meetings with appellant, which discussed the reasons why appellant was terminated from the program.† Buschmannís reasoning included the fact that appellant lacked motivation to seek treatment, did not believe treatment would be effective, did not take responsibility for his actions, refused to commit to taking his medications, expressed an unwillingness to attend group sessions, and was unsure if he could attend meetings on a regular basis because of transportation problems.† Buschmann concluded that appellant was not appropriate for the Project Pathfinders program.† She recommended that appellantís prison sentence be executed so that he could qualify for an inpatient treatment program in prison that would provide appellant with more structure.† Based on Buschmannís report, Jones reported to the court that appellant had violated his probation terms by failing to successfully complete the outpatient sex-offender treatment program with Project Pathfinders, and appellant was arrested.†

††††††††††† At the initial probation-revocation hearing, appellant denied violating his probation terms.† At the contested probation-revocation hearing, Jones testified that he no longer believed that appellant was amenable to sex-offender treatment on an outpatient basis.† He recommended that appellantís original sentence be executed so that appellant could qualify for an inpatient sex-offender treatment program in prison.† The district court found that appellant had failed to comply with his probation terms by not completing the Project Pathfinders program and that appellant did not have a reasonable excuse or justification for his violation.† The court continued the proceedings to allow appellant time to find an alternative to a prison inpatient program.† Appellant did not present an acceptable plan so the court revoked appellantís probation and executed his original 27-month prison sentence.† Appellant now challenges this decision.

D E C I S I O N

††††††††††† The district court has broad discretion to determine whether to revoke probation, and its decision should be reversed only if the court clearly abused its discretion.† State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).† Before revoking probation, the district court must identify the specific probation conditions that were violated, find the violation was intentional or inexcusable, and find the need for confinement is outweighed by the policies favoring probation.† Id. at 250.

††††††††††† Appellant argues there was insufficient evidence for the district court to conclude that appellant violated his probation terms without a reasonable or justifiable excuse.† Appellant argues that he was terminated from Project Pathfinders, not because he failed to complete what was asked of him, but because he was ordered to complete a program that was inappropriate for him based on his mental-health issues.† Accordingly, appellant contends that he was never given a meaningful opportunity to complete a suitable treatment program.

††††††††††† The district court identified the specific probation condition that appellant failed to satisfy; namely, that appellant failed to successfully complete the Project Pathfinders program.† The court found that appellantís violation was without a reasonable excuse or justification.† Specifically, the court found that appellant chose not to follow his probation terms because appellant has not taken responsibility for his actions, minimized his actions, and did not take his medications.†

The record supports the district courtís determination that appellant chose not to comply with his probation terms.† At the contested probation-revocation hearing, Buschmann testified that appellant was terminated from Project Pathfinders for several reasons.† Appellant lacked motivation to seek treatment, did not believe treatment would be effective, did not take responsibility for his actions, refused to commit to taking his medications, expressed an unwillingness to attend group sessions, and was unsure if he could attend meetings on a regular basis because of transportation.† While the first three factors may address appellantís mental-health status and might be beyond his conscious ability to deal with, the latter factors are well within appellantís control.† Buschmann testified that Project Pathfinders has a denial group.† Perhaps some of the reasons for appellantís termination from the program, such as his lack of motivation, his disbelief in the treatmentís success, and his lack of responsibility, could have been addressed in such a group if appellant had expressed a willingness otherwise to follow his probation terms by taking his medications regularly, attending group sessions, and attending meetings on a regular basis.† But he specifically told Buschmann that he did not want to take his medications, he did not want to attend group sessions, and he did not express a willingness to commit to attend meetings on a regular basis.† By doing so, appellant was not complying with the programís directives, and thus violated his probation terms.† Because appellant chose such actions, the district court correctly determined that appellantís violation was without a reasonable excuse or justification.† See State v. Rock, 380 N.W.2d 211, 212-13 (Minn. App. 1986) (upholding probation revocation where probationer failed successfully to complete sex-offender treatment program because probationer expressed unwillingness to work with treatment programs, expressed little remorse or regret, and had antisocial personality), review denied (Minn. Mar. 27, 1986).

Appellant next argues that probation should be revoked only as a last resort and that his confinement does not outweigh the policy favoring his continued probation.† The purpose of probation is to rehabilitate a probationer ďand revocation should be used only as a last resort when treatment has failed.Ē† Austin, 295 N.W.2d at 250.† The probationerís interest in freedom and the stateís interest in ensuring the probationerís rehabilitation must be balanced with public safety.† Id.† The district courtís decision to revoke probation requires a showing that the probationerís behavior ďcannot be counted on to avoid antisocial behavior.Ē† Id. at 251 (quotations omitted).

††††††††††† The district court expressed concern about the publicís safety, noting that appellant had eight alcohol-related offenses, many of which were gross misdemeanors.† The court also expressed concern about the publicís safety because appellant had not taken responsibility, did not take his medications, minimalized the offense, and was in denial.† These actions, along with his unwillingness to attend group sessions or attempt to attend meetings on a regular basis, demonstrate that appellant has failed to show a commitment to rehabilitation and has failed to take advantage of the opportunity he was given to rehabilitate himself.† Further, Buschmann and Jones testified that appellant is no longer amenable to treatment on an outpatient basis.† Given these facts, the policy considerations favored revocation because appellant cannot be counted on to avoid antisocial behavior.† See id. at 251 (concluding policy consideration favored probation revocation where probationerís violation of leaving treatment facility without permission showed probationerís unwillingness to commit to treatment and seriousness of violation would be denigrated if court had not revoked probation).

††††††††††† Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.