This opinion will be unpublished and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
Mercedes Delrocio Ortiz,
Filed May 9, 2006
Hennepin County District Court
File No. 03051730
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook,
Assistant Public Defender,
Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Crippen, Judge.*
Appellant challenges her probation revocation, arguing that the district court failed to make proper findings under State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), as required by State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005), and that there is not clear and convincing evidence to support the probation revocation. Because we conclude that the district court’s findings are adequate under Austin and Modtland and there is clear and convincing evidence to support the probation revocation, we affirm.
On August 18, 2003, appellant Mercedes Ortiz pleaded guilty to first-degree controlled-substance crime and fourth-degree driving while impaired. A Spanish interpreter was present and sworn, and he translated for appellant throughout the proceedings. After accepting appellant’s guilty pleas, the district court imposed an 86‑month sentence but stayed execution with the conditions that appellant would serve one year in the workhouse and be on probation for three years.
The district court also recited the conditions of appellant’s probation on the record, including that she (1) obey all the rules established by the Drug Court case manager and the court; (2) not be charged with any misdemeanors, gross misdemeanors, or felonies; (3) not use, possess, receive, or transport any firearms; (4) not use unauthorized prescription or illegal drugs; (5) keep probation informed of her residence and work and not change those without the knowledge or consent of the court; (6) successfully complete any treatment recommended, including aftercare; (7) serve 365 days in the workhouse; (8) pay $25 to the defendant’s training and employment fund during probation; (9) be employed or otherwise engaged in productive activities and fulfill any child-support obligations; and (10) complete urinary analysis, for which $250 would be credited against the fine for each clean UA.
Upon appellant’s release
from the workhouse on March 24, 2004, she was immediately deported to
revoking probation, a district court must (1) designate the specific probation
condition or conditions violated; (2) find the violation to be intentional or
inexcusable; and (3) find that the need for confinement outweighs the policies
favoring probation. State v.
In Modtland, the Minnesota Supreme Court
emphasizes that while an intentional or inexcusable probation violation is a necessary condition for probation to be revoked, it is not a sufficient condition. Rather, once an intentional or inexcusable violation has been found, the court must proceed to an evaluation of whether the need for confinement outweighs the policies favoring probation.
Modtland, 695 N.W.2d at 607-08.
argues that the district court’s findings were inadequate because the district
court failed to find that appellant’s probation violations were intentional or
inexcusable and the district court’s analysis on the third
Under the first
Under the second Austin factor, the district court found
that appellant knowingly violated the probation conditions because the
conditions were “set forth in the oral presentation” of the district court at
sentencing, were in the written sentencing order that appellant signed, and
because appellant “was on notice” that she could not return to the United
States without proper documentation after she signed a notice of removal. While the district court did not recite the
to the third
also argues that even if the district court made adequate findings on the
record, the evidence is insufficient to support the findings. A district court’s decision to revoke
probation must be based on sound judgment and not just the court’s will. State
v. Ornelas, 675 N.W.2d 74, 79 (
Specifically, appellant argues that the district court erred because the evidence does not support a finding that appellant’s violation was intentional or inexcusable because the following facts create a doubt as to intent: (1) this was appellant’s first violation of probation; (2) the record does not indicate whether appellant was informed of her continuing obligation to report to Minnesota probation when she was deported; (3) the record does not indicate whether appellant had a probation officer/contact since she was not placed on probation in the community but was deported immediately following her detention in the workhouse.
But we conclude that clear and convincing evidence supports a finding that appellant violated at least one of the conditions of her probation. Appellant pleaded guilty before the district court on August 18, 2003. A certified Spanish interpreter was sworn and translated the entire proceedings for appellant. The district court sentenced appellant to a downward departure of a stayed sentence of 86 months and probation of three years, then noted on the record the conditions of probation including the following: that appellant was not to be charged with any misdemeanors, gross misdemeanors, or felonies; that appellant was not to possess unauthorized prescription or illegal drugs; and that appellant must keep “us” informed as to where she lived and worked and was not to change these without the knowledge or consent of the court.
The record also contains a sentencing worksheet signed by appellant that lists the terms and conditions of her stayed felony sentence. The fourth condition required appellant to “keep the Drug Court Case Manager and Court informed at all times of your place of residence and employment, and make no change in these without the knowledge and consent of the Court.” Appellant’s signature appears at the bottom of this worksheet. While appellant’s probation officer testified at the probation-revocation hearing that she was unaware of whether a Spanish interpreter translated the sentencing worksheet to appellant because she was not present at the time, the district court noted that appellant knew what was required of her because of the district court’s oral recitation of the probation conditions that were translated to appellant at the sentencing stage of the hearing and appellant’s oral acknowledgement of her understanding on the record.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.