This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Willie Carl Gates, a/k/a Carl Gates, a/k/a Michael Gates,
Dakota County District Court
File No. K999469
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Kaarin S. Long, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.
In this appeal from an order revoking his probation imposed for first-degree controlled-substance crime, appellant argues that his failure to maintain contact with his probation agent was due to delays in transferring his probation to another county and that his failure to complete a chemical-dependency evaluation resulted from the failure of county corrections to arrange the evaluation. Appellant argues that any violations were unintentional and did not warrant revocation. Because appellant had an affirmative duty to fulfill his probation requirements and failed twice to do so, the district court did not abuse its discretion in revoking probation, and we affirm.
When appellant Willie Gates pleaded guilty in Dakota County to one count of first-degree controlled-substance crime, the district court departed dispositionally, stayed a presumptive 86-month prison sentence, placed appellant on probation for 15 years, and required as a condition of probation that he serve 180 days in jail and undergo a chemical-dependency evaluation.
After appellant’s release from jail, his probation officer gave him a Hennepin County phone number where he was to arrange for an evaluation. While the reason is not clear, it is uncontested that nearly seven months after the guilty plea, Hennepin County had not yet received appellant’s probation papers from Dakota County. It is also uncontested, however, that appellant failed to attend several appointments with his probation officer, failed to undergo an evaluation, and failed a drug test. A violation report was filed, and a revocation hearing scheduled.
After the revocation hearing, the district court ordered that appellant serve additional jail time, but continued probation, stating,
[y]ou are getting a break today. * * * But, it’s probably the last one you are going to get. * * * I hope that while you are in jail they can complete the chemical dependency evaluation if need be and make arrangements for you to participate in a treatment program. So, the Community Corrections Department will be notified to contact you in the Dakota County jail.
While appellant was still in jail, a probation officer contacted him and learned that no evaluation had occurred. The officer conceded that she had never heard of Hennepin County performing evaluations in other counties and that no one returned her phone call to arrange an evaluation. The officer confirmed that appellant’s case was not transferred to Hennepin County when he was in jail, delaying probation supervision. The officer did, however, tell appellant to undergo an evaluation as soon as he was released.
After appellant’s release from jail, his probation officer made several attempts to contact him by phone and by mail at his mother’s Minneapolis home. The majority of these attempts were unsuccessful. At one point, appellant agreed to meet with the officer but later cancelled, stating that he did not have transportation. The officer stated that she did not understand appellant’s explanation for not completing an evaluation and that appellant could have obtained one in Hennepin County. Appellant testified that, after his release, Hennepin County told him “they didn’t accept probation and they told me to go to the government building * * * [where he was told] they wouldn’t supply the funds.”
Subsequently, a second violation report was filed and a hearing was held. The district court revoked appellant’s probation, concluding that appellant had (1) failed to complete a chemical-dependency evaluation and treatment, (2) violated his probation conditions twice, and (3) only appeared at the hearing because three warrants had secured his presence.
The district court has broad discretion in deciding whether to revoke probation, and a reviewing court will reverse only if there has been a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). To justify a probation revocation, the district court must find clear and convincing evidence that a defendant violated the conditions of his or her probation. Minn. R. Crim. P. 27.04, subd. 2(1)(b).
Before revoking probation, a court must (1) specify the 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. “The purpose of probation is rehabilitation, and revocation should be used only as a last resort when treatment has failed.” Id. The district court must balance the probationer’s interest in freedom against the state’s interest in ensuring rehabilitation and the public safety. Id. The decision to revoke probation
cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.
Id. at 251 (quotations omitted). Probation should not be revoked unless
(i) confinement is necessary to protect the public from further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
Id. (quotation omitted). Revocation is justified, however, when
(1) The offender has been convicted of a new felony for which the guidelines would recommend imprisonment; or
(2) Despite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay.
Minn. Sent. Guidelines III.B.
Appellant argues that he unintentionally failed to maintain contact with his probation officer and that his failure to complete a chemical-dependency evaluation was not his fault. He points out that (1) his probation-transfer paperwork was never sent to Hennepin County, (2) the court ordered the Corrections Department to perform the evaluation on him while he was in jail, but neither Hennepin County nor Corrections did so, and (3) Hennepin County refused to pay for a chemical-dependency evaluation when he went to the government center after his release. He also claims that he did not receive most of his probation officer’s messages and that he tried to contact the officer.
Appellant raises several troubling questions. The court did suggest that corrections would perform an evaluation; respondent does not dispute the administrative failures of not transferring paperwork and of not performing the evaluation while appellant was in jail. After his release from jail following the first probation revocation hearing, however, appellant knew that he continued to have the responsibility to complete an evaluation. He made no effort to arrange to meet that requirement, despite having several months to do so. Most importantly, according to his probation officer’s testimony, appellant failed to stay in contact with the officer and could have, in fact, obtained an evaluation at the Hennepin County Government Center. The district court was entitled to find the officer’s testimony credible. See State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986) (stating that the district court “acts as a factfinder in weighing the credibility of the witnesses”), review denied (Minn. Feb. 13, 1987).
While we are troubled that appellant was turned away from obtaining an evaluation, he nonetheless had an affirmative duty to maintain contact with his probation officer. By doing so, he could have not only explained the difficulty he was having, but could also have sought assistance in fulfilling this probation requirement. Appellant failed twice to complete an evaluation. He was notified at his first probation hearing that he was being given a break (this is in addition to the one he received through the initial dispositional departure). He unquestionably knew of the importance of obtaining the chemical-dependency evaluation. While we do not minimize the inexplicable tangle of red tape present in this case, neither can we minimize appellant’s obligation to keep in touch with his probation officer. If that obligation had been fulfilled, the bureaucratic failures might have been rectified.
Appellant also argues that confinement is unnecessary because there is no indication that he will commit further criminal acts and because the intent of his probationary sentence was to treat his drug addiction. We recognize that appellant has not committed any felonies and that, while on probation, he has only been charged with driving without a license. We recognize also, however, as does appellant himself, that he was placed on probation in order to treat his drug addiction. Appellant, very aware of why he was being placed on probation rather than being sent to prison, should have realized the importance of the drug evaluation. If and when he encountered difficulty in arranging for that evaluation, he should have acted diligently in discharging his responsibility to keep in touch with his probation officer.
Further, a court need “not specifically find that the need for confinement outweighs the policies favoring probation” when the court previously made a downward departure from the presumptive sentence and made clear that it was doing so to permit “one last attempt to succeed at treatment.” Id. at 24. The district court initially stayed an 86-month presumptive prison sentence and placed appellant on probation. Two probation revocation hearings were ultimately held, the first resulting in yet another “break” accompanied by the court’s warning that it would be the last. We are unable to conclude on the record before us that the district court abused its discretion in revoking appellant’s probation.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.