This opinion will be unpublished and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

C8-01-1444

 

 

Gale A. Rachuy,

petitioner,

Appellant,

 

vs.

 

Bert Mohs, Warden at MCF-RC, et al.,

Respondents.

 

 

Filed May 7, 2002

Affirmed

Poritsky, Judge *

 

 

Chisago County District Court

File No. C101348

 

Gale A. Rachuy, 7600-525th Street, Rush City, MN 55069 (pro se appellant)

 

Mike Hatch, Attorney General, Mark B. Levinger, Assistant Attorney General, NCL Tower, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

 

Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.


U N P U B L I S H E D  O P I N I O N

PORITSKY, Judge

After an administrative hearing, the department of corrections revoked appellant’s supervised release privileges and ordered that he be re-incarcerated.  The district court denied appellant’s subsequent habeas corpus petition in which he sought relief from the revocation.  On appeal, appellant challenges the revocation on the following grounds: (1) the parole officer’s written violation report was untimely and contained false statements; (2) the warrantless search conducted by police and corrections officials violated the state constitution, and (3) the revocation hearing did not comply with due process because (a) appellant did not receive proper written notice, (b) hearsay evidence was admitted, (c) defense evidence was excluded, and (d) the hearing officer did not make written findings.  Appellant further argues that the habeas court used the wrong standard in reviewing respondents’ decision.  We affirm. 

FACTS

On October 30, 2000, the department of corrections (department) granted Gale A. Rachuy conditional supervised release from the sentence imposed following his conviction of theft by swindle.  The release was predicated on 10 “special conditions” prohibiting him from engaging in certain activities without documented approval of his supervising agent.  The prohibited activities included entering into any written or verbal contract with another person or business; borrowing money, going into debt, or buying on credit; soliciting or offering to obtain financing for investments; or engaging in any business activity.  Rachuy received and signed a copy of the release terms on the date of his release.

While on supervised release, Rachuy was under supervision of Brian Moreau, a department parole and probation agent.  On January 2, 2001, Moreau called Jeff Peterson, the department’s executive officer of the hearings and release unit, and told Peterson that Rachuy had violated four special conditions of his supervised release.  Moreau told Peterson about two incidents in which Rachuy, purporting to act on behalf of organizations with which, in reality, he was not associated, ordered tens of thousands of dollars of merchandise for which he did not pay. 

On January 2, 2001, Peterson issued a warrant for Rachuy’s detention.  The warrant specified the conditions that Rachuy had allegedly violated while on supervised release.  The next day, Rachuy did not appear for a previously scheduled meeting with Julie Welsh, a department agent.   

On January 24, 2001, Officer Tom Bergren searched Rachuy’s residence at 696 Burr St., St. Paul.  A co-resident of the home, Scott Larson, signed a consent form, permitting the search.  Bergren discovered papers belonging to Rachuy that constituted evidence of conditional release violations.  On February 9, 2001, Rachuy was arrested on the department’s warrant and transported to the Chisago County jail to await the revocation hearing scheduled for February 20, 2001. 

On February 15, 2001, Rachuy was served with notice of the February 20, 2001, revocation hearing, a notice of the specific conditions of his release that he allegedly violated, and a notice of his right to a hearing.  The department forwarded the documents to Rachuy’s attorney’s office by fax.  The attorney’s fax machine ran out of paper, and he failed to receive the last four pages of the documents, which consisted of some of the documentary evidence against Rachuy.  Ultimately, these four pages were given to Rachuy on the first day of his administrative violation hearing.

A habeas corpus hearing was conducted at the district court on February 20, 2001, in which Rachuy, citing the fact that he had not been granted a revocation hearing by the department, challenged his hold.  That same day, before the habeas corpus hearing was completed, the administrative revocation hearing commenced.  The district court found the habeas corpus petition moot.  The revocation hearing was continued until February 23, 2001. 

Rachuy was represented by counsel at the revocation hearing.  Moreau testified and submitted documents that showed Rachuy posing as an agent for various businesses to buy coffee, to purchase elk and trout meat, and to purchase a 2001 Dodge vehicle.  He also submitted documents in which Rachuy sublet a vehicle from a married couple.  Neither Rachuy nor his attorney made a hearsay objection to the documents.

The hearing officer determined that Rachuy had violated four of the conditions of his release and that he should be re-incarcerated for 270 days.  After the revocation, Rachuy pursued his petition for habeas corpus relief, claiming that the revocation was unlawful, that his detention at the department from February 9 to 20, 2001, without a hearing was unlawful, and that he did not receive four of the documents containing evidence of his violations until the morning of the hearing, in violation of Minn. Stat. § 589.08 (2000).   

A hearing on the petition was held on March 16, 2001, when the district court heard arguments.  Respondents agreed to file a copy of the transcript from the February 2001 revocation hearings with the court.  After the transcript was filed, both parties submitted briefs to the district court.  The district court filed an order on July 20, 2001, denying the petition, and this appeal followed. 

On January 14, 2002, Rachuy filed with this court an informal reply brief, a motion to accept the untimely reply brief, and a motion to strike certain arguments made by the department in its brief.  On January 24, 2002, we accepted the informal reply brief and deferred his motion to strike pending review of the appeal on its merits.

D E C I S I O N

The district court’s findings in considering a petition for writ of habeas corpus are entitled to great weight, and we will uphold them if supported by the evidence.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  If the petition presents an issue of statutory construction, our review is de novo.  Id.

I.

On January 2, 2001, Moreau requested an arrest warrant by telephone from Peterson, but did not prepare a written violation report until February 14, 2001.  Rachuy contends that Moreau’s failure to prepare the report within five working days invalidates the revocation proceeding. 

When a supervising agent requests a warrant by telephone from the executive officer of the hearings and release unit, the supervising agent may provide the necessary information by telephone.  Minn. R. 2940.3200B (2000).  Under department policy, the supervising agent is then required to provide a written violation report within five working days from the time a warrant is issued.  Minn. R. 2940.3200D (2000); Minnesota Dept. of Corrections Policy Manual § 205.010E (Policy Manual).

Here, Peterson had sufficient information on which to issue an arrest warrant based on the information that Moreau relayed to Peterson by telephone.  This information was contained in a written violation report later prepared by Peterson, but the written report was prepared well after the five days allowed by department policy.  However, Rachuy neither alleges nor demonstrates any prejudice resulting from the delay.  Absent any prejudice to Rachuy, we conclude that the delay in filing the written report is not ground to reverse the revocation.  

Rachuy also alleges that Peterson’s affidavit was fraudulent.  But the district court found that the statement was not fraudulent, and we grant deference to the district court’s factual findings.  State ex rel. Holecek, 472 N.W.2d at 186. 

II.

Rachuy next contends that Bergren’s search of Rachuy’s residence was illegal and that the evidence seized should have been suppressed.  The district court found that Scott Larson, a co-resident, consented to the search.  Larson signed a consent form authorizing the search. 

A person with common authority over, or a sufficient relationship to, the premises may consent to a search of the dwelling.  State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999).  Voluntariness of consent is a factual finding made by the trial court after considering the totality of the circumstances.  State v. Schweich, 414 N.W.2d 227, 230 (Minn. App. 1987). 

Rachuy argues that other residents and witnesses to the search heard  Bergren state that he was searching for “drugs and guns” and that because he obtained consent by misrepresenting the purpose of the search, the consent was invalid.  But Bergren’s affidavit unequivocally stated that he did not tell Larson that he was just searching for “guns or drugs.”  He stated that he asked Larson for consent to search the house for items belonging to Rachuy and that Larson consented to the search.  Because the district court’s findings are entitled to great weight and will be upheld if supported by the evidence, State ex rel. Holecek, 472 N.W.2d at 186, and here the evidence supports the conclusion that consent to the search was voluntary, we conclude that the evidence obtained during the search was obtained lawfully. 

Furthermore, we find unpersuasive Rachuy’s argument that he did not receive the consideration of his suppression motion required by Minn. Stat. § 626.21 (2000).  The district court considered the suppression issue, reviewed the affidavits, and found that there was valid consent to the search. 

III.

Rachuy contends that his due process rights were violated because the department did not follow the requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972).  To satisfy due process when revoking parole, Morrissey requires:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. 

Id. at 489, 92 S. Ct. at 2604.

 

Notice of alleged violations of parole conditions.

 

            Rachuy contends that he was prejudiced by the “sloppy drafting of the written violation report” that he received, claiming that the supervising agent changed a special condition of his parole to prohibit him to “open or maintain a checking account” to “open and maintain a checking account.”  Rachuy was not prejudiced by this typographical change.  Evidence presented at the hearing showed that he both opened and maintained a checking account.

 

Hearsay evidence.

 

            Rachuy contends that the documents Moreau submitted representing the prohibited transactions constituted double hearsay, which cannot constitute sufficient evidence to support a parole revocation.[1] 

            Parole revocation hearings are not equated to criminal prosecutions in any sense.  Pearson v. State, 308 Minn. 287, 290, 241 N.W.2d 490, 492 (1976), citing Morrissey, 408 U.S. 489, 92 S. Ct. 2604. 

In certain circumstances the admission of hearsay evidence, such as police reports or sworn victim statements, which would be inadmissible in a criminal trial is permissible in a revocation hearing.  Morrissey specifically states that the revocation process “should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”

Belk v. Prukett, 15 F.3d 803, 808 (8th Cir. 1994) (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604).  In deciding whether to consider hearsay statements of a witness not presented for cross-examination, the hearing officer should consider whether the hearsay evidence at issue bears substantial indicia of reliability.  Id.  The numerous exceptions to the hearsay rule provide such indicia.  See id.

Here, the department is permitted to rely on normally inadmissible evidence pursuant to Minnesota Dept. of Corrections Policy Manual § 106.140(C)(1)(e)(1).  The type of inadmissible evidence presented here is of the type that is generally accepted as reliable because, with authentication, it would have been admissible hearsay under Minn. R. Evid. 803(6), the business record exception.

 

Disclosure of evidence.

 

            Rachuy contends that he was not provided with advance copies of four of the 66 pages of the documentary evidence that was submitted at the hearing until February 20, 2001, the first date of the hearing.  According to the testimony at the hearing, Rachuy’s attorney’s fax machine ran out of paper when the documents were faxed to him.  The supervising agent unsuccessfully tried to re-fax the missing four pages.  He did not try any alternate methods of service.  One of those documents established that Rachuy and his wife were maintaining a checking account at the River Bank in Chisago Lakes.  That document was used to find a violation of one of the special conditions of his release that he not open or maintain a checking account.  But the testimony about that special condition was not heard until the February 23 hearing.  The fact that he did not receive advance notice before the February 20, 2001, hearing date did not deprive Rachuy of the opportunity to prepare for the hearing on February 23, when the evidence was received

 

Denial of witnesses.

 

            Rachuy contends that his due process rights were violated because he asked to have Julie Welsh, one of his supervising agents; “parties from Hennepin County;” and his wife testify.  He also argues that he was not able to cross-examine adverse witnesses from the companies he was alleged to have defrauded. 

            Rachuy’s attorney requested a continuance at the February 20, 2001, hearing so that he could procure the witnesses.  But at the next hearing date, on February 23, 2001, he did not produce any witnesses or request a further continuance to produce any witnesses.  Furthermore, Rachuy sought to have Welsh testify about the charge for not reporting to her, as his supervising agent, on January 3, 2001.  But that allegation was dismissed by the hearing officer, negating the need for her testimony.  Rachuy’s request to have his wife testify was made after both parties had closed, during the phase of the proceeding when the hearing officer was making findings. 

 

Written statement by hearing officer

            The hearing officer issued a written decision in this matter, but did not explicitly state the evidence relied on in revoking parole.  Rachuy requests that this matter be remanded for such a statement.  The district court found that the transcript of the hearing was sufficient to satisfy this requirement. 

            Oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey when they create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation and the evidence on which the decision maker relied.  U.S. v. Copeland, 20 F.3d 421, 414 (11th Cir. 1994); see State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (district court did not abuse its discretion by revoking probation where record contained sufficient evidence to support finding of violation even though court failed to designate which probation condition was violated). 

Here, there was sufficient evidence in the record to support the hearing officer’s and the district court’s findings.  The district court and the hearing officer entered written decisions.  The hearing officer identified which findings were supported by the evidence and which were not.  A transcript containing the hearing officer’s findings was made and printed.  In the transcript, the hearing officer explained the evidence relied on when making each finding.  That transcript provided a sufficient written statement required by Morrissey.  The district court did not abuse its discretion when it refused to find a due process violation.

IV.

 

Rachuy contends that the district court applied the wrong standard of review to the case because it used the standard for prison discipline cases.  In reviewing the findings of the hearing officer, the district court found that “there is ample evidence that [Rachuy] violated the Special Conditions of supervised release.”  (Emphasis added.)  This is a constitutionally sufficient standard.  All that is required to justify a revocation order is

enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of the probation.

U.S. v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974).  Absent an abuse of discretion, a district court’s revocation hearing findings cannot be disturbed.  Id. 

As to this court’s review of the district court, findings of the district court in a habeas corpus appeal are sustained if they are reasonably supported by the evidence.  Edstrom v. State, 378 N.W.2d 90, 93 (Minn. App. 1985).

Here, there was sufficient evidence in the record for both the hearing officer at the revocation hearing and the district court in the habeas corpus proceeding to conclude that Rachuy had violated conditions of his parole.  The district court found that, without approval from his supervising agent, Rachuy acted in a fiduciary role for another person or business, opened and maintained a checking account, and entered into written contracts with another person or business.  Evidence submitted at the administrative hearing showed that Rachuy contacted vendors, without written approval of his supervising agent, to order tens of thousands of dollars worth of merchandise.  He falsely represented to the vendors that he was representing organizations, when he was not, in fact, an agent for them.  He also opened and maintained a checking account.  He began engaging in the same type of fraudulent, illegal activity that he had been convicted of numerous times over the past thirty years and that constituted the convictions for which he is currently serving a sentence.  He performed these acts within two months of his conditional release.  He intentionally misrepresented his status.  Sufficient evidence exists in the record to support the revocation.

V.

In his motion made after the submission of the state’s brief, Rachuy moves this court to strike points I, II.A., and II.B. of the state’s brief to this court.  Rachuy argues that the state changed its argument in Point I of its appellate brief from the argument made to the district court.  Regarding the issue raised in point I, we have held that Rachuy did not show any prejudice by the violation of the rules requiring a written violation report within five days of the issuance of an emergency warrant.  The state raised this argument on page six of its brief to the district court filed on March 16, 2001. 

Similarly, Rachuy erroneously contends that the state’s argument in point II.B. of its brief, that the search of his home was consensual, was first raised in this appeal.  That argument was likewise raised on page six of the state’s March 16, 2001 brief to the district court. 

Rachuy’s motion to strike the state’s argument citing United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001), is moot.  We have held that the search was based on a co-resident’s consent and was therefore legal.  We therefore deny Rachuy’s motion to strike portions of the state’s brief on that issue.

Affirmed.



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

[1] We note that Rachuy’s attorney did not object to the documents at the administrative hearing on the basis of hearsay.  We generally do not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).