This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Albert Novitsky,
Filed February 25, 2003
Hennepin County District Court
File No. 00000354
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, Minnesota 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
Ronald Novitsky appeals from an order revoking his probation and executing his previously stayed sentence for first-degree burglary. Novitsky argues that the district court abused its discretion in revoking probation based on his violation of his ex-wife’s order for protection, and his failure to keep appointments with his probation officer, because the violations were the result of depression and denial of contact with his children. Novitsky also challenges the upward sentencing departure imposed at the time of his initial guilty plea and argues that the upward durational departure cannot, following Misquadace, be supported by the plea agreement, and that the presence of his children during his entry into his ex-wife’s house did not provide a substantial and compelling reason for departure. We affirm.
In February 2000, Ronald Novitsky pleaded guilty to one count of felony first-degree burglary. This charge stemmed from an incident in which he entered his former wife’s home through a basement window in violation of an order for protection, confronting her and her boyfriend, J.H., with a knife. Before the police arrived, Novitsky’s minor children and J.H. struggled with Novitsky in an attempt to subdue him.
As part of his plea agreement, Novitsky received a sentence of 54 months, a double-upward durational departure from the sentencing guidelines for felony burglary. The court noted as a reason for departure that the offense had been committed in the presence of Novitsky’s minor children. At the plea hearing, the district court stayed the execution of the sentence for ten years, ordered Novitsky to serve one year in the workhouse, complete violence-prevention classes, participate in individual therapy, abstain from drugs and alcohol, and have “absolutely no contact” with his former wife or children for one year.
In February 2001, after his release from the workhouse, Novitsky was arrested and detained for a probation violation on the grounds that he had failed to complete chemical-dependency treatment and counseling, and failed to abide by the “no indirect contact with victims” condition of his probation. Novitsky’s ex-wife alleged that he had posted flyers in a public place depicting her in a degrading manner. At a hearing on March 2, 2001, the court accepted Novitsky’s admission that he failed to complete chemical-dependency programming or become involved in domestic-violence programming, and imposed a further six-month workhouse sentence. At this hearing, the judge told Novitsky that if he persisted in violating the terms of his probation, the likely result would be execution of the remainder of his prison term.
Novitsky appeared in court again after he failed to report to his probation officer on several occasions and made a threatening phone call to his former wife at her workplace in which he told her she had “wrecked his life” and she would “burn in hell.” Because Novitsky alleged that his failure to contact his probation officer resulted from mental illness, the court ordered a psychological evaluation.
At a probation-revocation hearing on May 28, 2002, Rebecca Reed, the court-appointed psychologist, presented the results of her evaluation. She reported that, although Novitsky complained of depressive symptoms, they were somewhat exaggerated, and she was not sure whether he met the criteria for clinical major depression. Reed testified that, although she saw him as a low to moderate risk to reoffend, he was a very poor treatment candidate. Michael Condon, Novitsky’s probation officer, testified that Novitsky had completed the violence-prevention program at the workhouse with an average rating, but had failed to complete the chemical-dependency program, from which he was discharged “incomplete with a prognosis of poor.” Condon stated that he offered Novitsky mental-health services, but Novitsky declined. Novitsky also refused to participate in a plan to seek employment, pay child support, or attend a community-based violence prevention program. Condon stated his opinion that Novitsky was not amenable to felony probation supervision and recommended that probation be revoked.
The court revoked Novitsky’s probation, ordering execution of the previously stayed sentence. The court noted Novitsky’s missed appointments with his probation officer and his contact with his former wife in violation of the order for protection. The court further indicated concern with protecting society and Novitsky’s former wife, and stated that probation would not be effective for Novitsky. The court reiterated the presence of minor children at the time of the offense as a reason for the original upward departure. This appeal followed.
D E C I S I O N
Novitsky first argues that the district court erred in revoking his probation and executing his previously stayed sentence. The district court has broad discretion in determining whether to revoke probation and execute a sentence; its decision will be reversed only on “a clear abuse of that discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). In revoking probation, the 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 need for confinement outweighs the policies favoring probation.
Id. at 250. A revocation decision requires a showing that the “offender’s behavior demonstrates that he or she ‘cannot be counted on to avoid antisocial activity.’” Id. (quotations omitted).
In this case, the district court identified the specific violations of Novitsky’s probation: his failure to contact his probation officer on several occasions, as well as the harassing phone call to his former wife, made in direct violation of the order for protection. The court found that these violations were intentional, noting that the probation officer, the psychologist, the attorneys, and the court had all made it clear to Novitsky what he must do to avoid incarceration. Finally, the court stated its concern with protecting society and Novitsky’s former wife from his “active engagement in the community.” The evidence thus shows that the district court made sufficient findings to satisfy the Austin requirements.
But even if the district court had failed to make specific findings on the Austin factors, reversal would not be mandated unless the record contained insufficient evidence to warrant probation revocation. Id; State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding that when record contained sufficient evidence to warrant revocation, court’s failure to make express findings not abuse of discretion), review denied (Minn. July 20, 1995). In this case, the unrefuted testimony of Novitsky’s former wife establishes that he made a threatening call to her workplace in direct violation of the order for protection and the conditions of his probation. Moreover, Novitsky missed several scheduled appointments with his probation officer in late 2001 and early 2002. Thus, the record contains sufficient evidence to sustain the district court’s revocation of Novitsky’s probation.
We acknowledge the evidence in the record demonstrating Novitsky’s attempts to abide by the terms of his probation. For instance, Novitsky contacted another county representative in lieu of his assigned probation officer. In addition, Novitsky largely complied with probation’s numerous requests between December 19, 2001, and February 9, 2002 to complete status forms. But on each form Novitsky indicated his refusal to work or to participate in a domestic-violence program or other mental-health services. When a defendant has been offered treatment but has failed to take advantage of that opportunity or to show a commitment to rehabilitation, the district court may reasonably conclude that treatment has failed. See Austin, 295 N.W.2d at 251. Moreover, psychologist Rebecca Reed, in a court-ordered evaluation, opined that, although Novitsky complained of depressive symptoms, he was a very poor treatment candidate and appeared to exaggerate his symptoms. This evidence undercuts Novitsky’s argument that he should have been ordered to complete intense therapy rather than lengthy incarceration.
We recognize that Novitsky enjoys the support of a family willing to assist him. But the record shows that the district court twice told Novitsky, in no uncertain terms, that the court would execute his sentence for failure to follow the conditions of his probation. A defendant’s failure to follow probation conditions, despite warnings of potential revocation, further indicates that the need for confinement outweighs policies favoring probation. See Theel, 532 N.W.2d at 267. We therefore conclude that the district court did not abuse its discretion in revoking Novitsky’s probation and executing the previously stayed sentence.
Novitsky also argues that the district court erred by imposing a double upward departure from the presumptive sentence for first-degree burglary. He contends that under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), his plea agreement, standing alone, did not create the substantial and compelling circumstances necessary to justify a sentencing departure.
As a threshold matter, Novitsky failed to raise this issue at the probation-revocation hearing. Generally, this court will not consider issues raised for the first time on appeal. State v. Sorensen, 441 N.W.2d 455, 457 (Minn. 1989). But even if properly raised, Novitsky’s argument fails on the merits.
Here, the district court, unlike the court in Misquadace, did not rely solely on the plea agreement when it imposed the upward durational departure. Rather, the court cited the presence of Novitsky’s children during commission of the offense as the main reason for departure. See State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (noting that “committing the offense in front of the children was a particularly outrageous act and that while the children were not technically victims of the crime, they were victims in another sense”). In the instant case, Novitsky’s children not only witnessed the burglary, but also struggled to take the knife away from him in an attempt to subdue him. We conclude that these facts constitute substantial and compelling circumstances that justify the imposition of an upward durational departure.