This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jacki A. Roonzani,
Filed March 22, 2005
St. Louis County District Court
File No. K0-03-300925
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 107D Courthouse, 1810 12th Avenue East, Hibbing, Minnesota 55746 (for respondent)
John M. Stuart, State Public Defender, Frank Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant challenges the district court’s judgment revoking probation and executing sentence, arguing that the record does not support the district court’s finding that (a) appellant violated a condition of probation, and (b) the need for appellant’s confinement outweighs the policies favoring probation. Appellant also argues that she is entitled to a new trial because her counsel was ineffective. Because the record supports the district court’s revocation of appellant’s probation and there was no ineffective assistance of counsel, we affirm.
The district court has broad discretion in deciding whether to revoke probation, and this 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 revocation of probation, 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); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). The court must weigh the probationer's interest in freedom against the state's interest in public safety and insuring the probationer's rehabilitation. Austin, 295 N.W.2d at 250. Before probation can be revoked, the district 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. Id.
Appellant challenges the district court’s decision to revoke her probation on all three prongs. First, appellant argues that the district court made no finding of a probation violation because the district court merely accepted the admission of appellant’s counsel without questioning appellant. This argument is without merit. Appellant waived her right to counsel at her March 1 revocation hearing. Thereafter, appellant admitted to drinking in her home on February 27 and violating her probation. At a March 5 revocation hearing, the district court noted appellant’s prior admission to the violation and gave appellant’s counsel the opportunity to withdraw that admission. Appellant’s counsel stated that appellant would continue with her admission. Thus, the district court relied on clear and convincing evidence that appellant violated a condition of her probation.
Second, appellant argues that the district court erred by finding that appellant’s violation was intentional because appellant is incapable of controlling her alcohol abuse. We disagree. This court has determined that a probationer's alcohol addiction does not vitiate intent. See State v. Ehmke, 400 N.W.2d 839, 840–41 (Minn. App. 1987) (affirming a revocation order that was based in part on probationer's inability to control his addiction to alcohol). Accordingly, the district court did not abuse its discretion in finding that appellant intentionally violated her probation.
Finally, appellant challenges the district court’s finding that the need for her confinement outweighs the policies favoring probation. Based on the record evidence, appellant has (1) repeatedly failed to maintain sobriety despite participation in multiple treatment programs; (2) repeatedly driven while intoxicated; and (3) violated the conditions of her last three sentences for DWI convictions. Although appellant was found drinking in her home, appellant cannot demonstrate that she will not drive intoxicated in the future. Noting the futility of enforcing sobriety through the court system, the district court stated at appellant’s revocation hearing, “there comes a point in time where the court system can no longer keep focusing on trying to help a person get sober and has to reflect the will of the society that that person has to be locked up. I think that is where we are at now.” The district court properly balanced appellant’s interest in freedom against the state’s interest in public safety and did not abuse its discretion in determining that appellant posed a sufficient danger to the public to warrant execution of her sentence.
Appellant next argues that she is entitled to a new probation revocation hearing because her counsel at the March 5 hearing was ineffective. A claim of ineffective assistance of counsel requires a defendant to show that (1) defense counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). There is a strong presumption that counsel’s performance fell within the wide range of reasonable assistance. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). Here, appellant contends that her counsel was ineffective because her counsel (1) failed to assert any mitigating statements; (2) failed to note the minor nature of her probation violation; and (3) failed to argue alternatives to the execution of her prison sentence.
Appellant’s ineffective assistance claim is unsupported. Whether the failure to offer mitigating statements constitutes ineffective assistance depends on the facts in the case and what arguments can credibly be made. Cf. Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004) (holding that defense counsel’s silence on a particular element of the crime did not constitute ineffective assistance); State v. Roberts, 279 Minn. 319, 323, 156 N.W.2d 760, 763 (1968) (holding that failure of defense counsel to interpose a particular defense is not ineffective assistance when, on the record, the defense has no merit). At appellant’s February 7 sentencing hearing, appellant’s counsel put forth the mitigating factors suggested by appellant and requested that the district court give appellant an additional chance at rehabilitation. Two weeks after receiving her probationary sentence, appellant violated one of her conditions by consuming alcohol. At appellant’s March 5 revocation hearing, appellant’s counsel acknowledged his client’s limitations with respect to alcohol and asked if execution of the sentence was the only alternative. Appellant’s counsel acted within the objective standard of reasonableness.