This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Donald J. Fisch,



Filed July 30, 2002


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 01036788



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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Donald J. Fisch appeals his probation revocation, arguing it was an abuse of discretion, and that he was punished for requesting a contested probation revocation hearing.  We affirm.


On May 25, 2001 Fisch pleaded guilty to making terroristic threats against his apartment building manager, Anthony Rowe.  Fisch received a stay of execution of his sentence of a year and a day, and was put on probation for three years.  Conditions of his probation included; Fisch was to have no contact with the victim; and Fisch was to participate in and complete an anger-management counseling program as directed by his parole officer.

            On December 31, 2001, Rowe contacted the Minneapolis Police Department regarding a threatening message left on his voice mail.  Rowe and the trial court determined that the voice was that of Fisch. 

            Fisch was arrested and brought before the court for a probation violation hearing.  On the first day of the hearing, the court gave Fisch the option of admitting to a violation and being sentenced to 90 days in the workhouse or having the revocation hearing.  Fisch chose to have a contested hearing. 

            At the hearing the court ruled Fisch violated his probation terms.  In determining his penalty, the court took notice that the victim was legitimately afraid for his life because of the threats made by Fisch.  The court revoked the stay of execution of sentence and sentenced Fisch to a year and a day.  This appeal followed.


            "The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The trial court is the fact finder in a probation-revocation hearing and is charged with weighing the credibility of the witnesses.  State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985).  Before probation is revoked, the trial court must 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.  Austin, 295 N.W.2d at 250.  The third factor is the only one at issue in this case.

            "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 and the state’s interest in insuring his or her rehabilitation and the public safety.  Id.  "The decision to revoke 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 (quotation omitted).  A court should not revoke probation and order imprisonment of a defendant 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.  (quoting American Bar Association Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

            In this case, the district court found that the victim was afraid for his life because of Fisch's threats.  The trial court ruled that Fisch was a threat to the victim and was concerned about the possibility of him carrying out the threats.  The trial court had a legitimate concern about the safety of the public, in particular the victim.  We find no abuse of discretion in the trial courts determination that revoking Fisch's probation was the proper way to protect the victim from future threats or actual violence. 

            2.         Before a final decision revoking probation, there must be an opportunity for a hearing at which a final evaluation of any contested facts is made.  Pearson v. State, 308 Minn. 287, 290, 241 N.W.2d 490, 492 (1976); Minn. R. Crim. P. 27.04, subd. 3.  "A defendant must not be punished for exercising rights that are constitutionally guaranteed."  State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985) review denied (Minn. Dec. 19, 1985).  "[T]he fact that a 'defendant exercises his constitutional right * * * to determine his guilt or innocence must have no bearing on the sentence imposed.'"  State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (quoting Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974)).  "[T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty."  Mollberg, 310 Minn. at 388 246 N.W.2d at 471 (quoting, United States v. Stockwell, 472 F.2d 1186, 1188 (9th Cir.), certiorari denied, 411 U.S. 948, 93 S. Ct. 1924 (1973)). 

The sentence Fisch received was based on the testimony in court.  The court made it clear to Fisch that he would not receive a harsher sentence merely because he requested a hearing.  The court informed him:

[I]f you elect to have a hearing, it does not mean your penalty, if you were found to violate probations, would necessarily be greater.  It might not be 90 days, might be more, it might be less, so there's no real advantage or disadvantage in asking to have a hearing.  Your decision on that should be totally independent of what the proposed penalty is today.


            Fisch has not shown that the execution of his sentence resulted from his exercise of his right to a hearing.  Cf.  State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983) (noting that defendant exercising right to trial risks exposing all facts of the offense before the sentencing judge).