This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare of:
Hennepin County District Court
File Nos.: 204707/J1-01-066059
Mike Hatch, Attorney General,
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant)
Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.
U N P U B I S H E D O P I N I O N
In this appeal from an order revoking appellant C.R.W.’s probation and executing his stayed sentence, C.R.W. argues that the revocation order should be reversed because the district court failed to make adequate supporting findings. He also argues that the district court abused its discretion by revoking probation based on (1) technical violations, (2) conduct that had been addressed at a previous revocation hearing, and (3) conduct that was not included in the probation-violation notice. Because we find no abuse of discretion, we affirm.
In September 2001,
C.R.W. had difficulties satisfying the conditions of his probation. First, the district court removed C.R.W. from
the rehabilitation program because he had failed to make adequate
progress. The court transferred him to a
program at the correctional facility in Red Wing. He completed that program the following
year. Then in August 2004, the state
charged C.R.W. with a controlled-substance crime. At the consequent probation-revocation
hearing, C.R.W. admitted that he violated the terms of his probation by using
controlled substances and by accumulating new criminal charges. Rather than revoke his probation, the
district court continued C.R.W.’s probation and ordered him to complete a
chemical-dependency program while serving six months at a
C.R.W.’s difficulties continued when he was released from the workhouse to a group home in January 2005. During that placement, in what C.R.W. believes was retaliation for the shooting that he pleaded guilty to, an assailant shot C.R.W. He was discharged to his mother’s custody for his safety in April 2005. On July 6, 2005, police arrested C.R.W. for making terroristic threats and being a felon in possession of a weapon. He was not charged with a crime, but the victim obtained an order for protection. C.R.W. tested positive for marijuana use on July 20 and August 12, 2005, and police soon arrested him for violating the order for protection.
The district court issued a warrant to apprehend and detain C.R.W. based on several alleged probation violations. When C.R.W.’s probation officer notified him of the warrant, he promised to turn himself in. But C.R.W. ceased contact with his probation officer for more than a month. In September 2005, authorities took him into custody for violating the order for protection and for possessing a controlled substance. C.R.W. pleaded guilty to violating the protection order.
The district court revoked C.R.W.’s probation after a probation-revocation hearing in November 2005. It executed the stayed 153-month sentence for attempted second-degree murder. The district court credited C.R.W. with 655 days for time spent at various correctional and detention facilities. This appeal of C.R.W.’s probation revocation follows.
D E C I S I O N
challenges the district court’s decision to revoke his probation. The district court has broad discretion when
determining whether sufficient evidence exists to revoke probation and execute
a sentence, and we will not reverse absent a clear abuse of that discretion. State v.
C.R.W. first asserts that the district court failed to make sufficient
findings on the
The district court also made findings regarding
Finally, the district court found that “the need for [C.R.W.]’s confinement outweighs the policies favoring probation.” The district court noted that C.R.W. “has been offered numerous EJJ probation services and yet he continues to re-offend.” The court reasoned that he “has consistently and repeatedly violated the terms of his EJJ probation,” demonstrating that “he is not amenable to probation.” The court also found no mitigating factors relating to C.R.W.’s probation violations. It made findings regarding the services that C.R.W. has received and C.R.W.’s progress in those programs. The district court ultimately found that C.R.W.’s repeated probation violations have “exhausted the resources available to him under juvenile jurisdiction” and that revocation of probation was required to ensure public safety.
It is clear to us that the district court made considered
findings on all three
C.R.W. also argues that his probation violations are
technical violations that do not warrant revocation. C.R.W.
misunderstands what is a “technical violation.”
“[A]n accumulation of technical violations” should not be the basis for
probation revocation. B.Y., 659 N.W.2d at 772 (quotation
omitted). Rather, to support revocation,
the violations must demonstrate that the offender “cannot be counted on to
avoid antisocial behavior.”
Although the supreme court has not defined “technical
violation” since borrowing the term in 1980, treatment by the federal court
informs our conclusion that C.R.W.’s infractions are not the sort of
inconsequential technicalities that the
C.R.W.’s violations were not “technical,” they were substantive and serious. While on probation, he was arrested on multiple occasions and pleaded guilty to crimes. He also tested positive for and admitted to several instances of using illegal drugs. This new criminal conduct violated the district court’s order that C.R.W. remain law abiding. C.R.W. also broke contact with his probation officer for more than a month, which also violated the court’s order. Instead of amounting to technical violations, as C.R.W. contends, this conduct demonstrates C.R.W.’s inability to remain law abiding and to avoid antisocial behavior. The district court did not revoke C.R.W.’s probation for technical violations.
C.R.W. also argues that the district court’s decision to revoke his
probation was based in part on conduct not included in the notice of
revocation. He is mistaken. Both the state and federal constitutions
require that an offender be given notice of the alleged grounds for revocation
before revoking probation.
C.R.W. contends finally that the district court abused its discretion by
considering conduct that the district court addressed in a prior revocation
hearing. The district court found that
C.R.W. was arrested for a controlled-substance crime in August 2004. This violation prompted C.R.W.’s first
probation-revocation hearing, after which the district court decided not to
revoke probation and ordered C.R.W. to complete a six-month term at the
Although it appears that the district court considered C.R.W.’s 2004
controlled-substance violation in its conclusion that C.R.W. is not amenable to
probation, this violation was not the basis for the 2005 probation revocation. This alone defeats C.R.W.’s
argument. Additionally, C.R.W. cites
no authority for the proposition that prior probation violations cannot be
considered when determining whether probation should be revoked in a subsequent
probation-revocation hearing. And revocation of probation is justified when an offender “persists
in violating” the terms of probation “despite prior use of expanded and more
onerous conditions of a stayed sentence.”