This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1327

 

Terrance Tyree Arnold, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 2, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Washington County District Court

File No. KX992430

 

 

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

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

 

Doug Johnson, Washington County Attorney, Heather Pipenhagen, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)

 

 

Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

            After the district court revoked appellant’s probation and denied his petition for postconviction relief, he appealed, arguing that the judge was biased and used an improper standard for revoking his probation.  Because we find no evidence of bias and no error in revoking appellant’s probation, we affirm.

FACTS

            Under a plea agreement, appellant Terrance Tyree Arnold pleaded guilty to possession of cocaine.  The district court departed dispositionally and durationally from the presumptively executed 88-month sentence and imposed a stayed sentence of 76 months with ten years’ probation.  One condition of probation was that Arnold abstain from drug use.

On January 9 and 12, 2001, Arnold tested positive for THC and cocaine. He refused tests on January 10 and 11, 2001.  At his probation revocation hearing on January 23, 2001, Arnold admitted the positive tests.  The district court revoked Arnold’s probation and committed him to prison. 

Arnold then filed a petition for postconviction relief, alleging that the sentencing judge was biased and used the wrong legal standard for the revocation.  After a hearing, the court denied the petition.  Arnold appealed.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id. (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).

1.         Bias of the Judge

Due process entitles a criminal defendant “to an impartial and disinterested tribunal.”  McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998) (quotation omitted).  A judge must have “no actual bias against the defendant or interest in the outcome of his particular case.”   Id. (quotation omitted).  There is a rebutable presumption that “a judge has discharged his or her judicial duties properly.”  Id. 

In an effort to rebut the presumption of judicial propriety, Arnold relies on an affidavit by his former defense attorney.  The affidavit states that the defense attorney heard the judge make statements that indicated the judge had decided to revoke probation even before the hearing:

Before the revocation hearing, I had a discussion with the judge and the prosecutor * * * .  During this discussion, the court indicated that she was going to send Mr. Arnold away.  I took this to mean that she was going to revoke Mr. Arnold’s probation and execute his prison sentence.

 

The affidavit does not purport to be a verbatim quotation of the judge’s comment.  Neither the judge nor the prosecutor recalls the statement.  Furthermore, we are provided with neither a record of the alleged discussions about the revocation nor a context in which the alleged comment occurred.  Although Arnold argues that this statement shows that the judge made up her mind before hearing evidence, it is equally plausible that, if the statement was made at all, the judge was indicating what the likely consequence would be if a violation were established.  It is also notable that, despite the judge’s alleged bias, Arnold did not seek the judge’s removal from hearing the violation allegation.  We are thus left to speculate and to make credibility assessments without a record of any sort to review.  Arnold has failed to rebut the presumption of judicial propriety.

2.         Revocation Standard

Arnold contends that the district court considered the fact that Arnold’s original sentence was a departure and that such consideration lowered the standard the court was required to apply in assessing the alleged violation.

The district court must do three things before a probation revocation will be proper: (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.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  In its postconviction order the court found that the first two Austin factors were uncontested, but that the third factor was an issue it had to determine on the evidence.  These findings are supported by the record. 

In its postconviction order, the court found that as a probationary condition Arnold was to abstain from the use of mood-altering chemicals and that he did not do so.  The court also found that Arnold’s failure to adhere to this condition was of grave concern not only because he tested positive for drugs within a relatively short time after being placed on probation, but also because he had previously used drugs while on supervised release.  Finally, the court found that Arnold had been in treatment twice before, but had not followed through with treatment programs while in the community.  The court concluded that, based upon these facts, Arnold was not amenable to treatment or probation, and the need for confinement outweighed the policies favoring probation.  These conclusions are supported by the record.

Because the district court’s findings and conclusions in its postconviction order are supported by the record, they are not clearly erroneous.  Furthermore, because the court made all the necessary Austin findings before revoking Arnold’s probation, it did not employ a lower standard in assessing Arnold’s violation.

Finally, Arnold argues in his pro se brief that the evidence does not support the third Austin factor.  As noted above, the evidence supports the conclusion that Arnold is not amenable to probation.

Affirmed.



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