This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Deandre Marcel Smith,
Hennepin County District Court
File No. 04068578
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Stephen L. Smith, Assistant
State Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s decision to revoke appellant’s probation and to execute his sentences to run concurrently. Appellant argues that the district court abused its discretion by revoking and executing appellant’s sentence, because he contends that the violation was not proven by clear and convincing evidence and that the need for confinement did not outweigh the policies favoring probation. We affirm.
Appellant Deandre Marcel Smith pleaded guilty on January 6, 2005, pursuant to a plea bargain, to third-degree burglary in violation of Minn. Stat. § 609.582, subd. 3 (2004). As part of the plea bargain, appellant agreed to both a dispositional and durational departure. He agreed to an upward departure of 48 months and a stay of execution with three years probation. Appellant was already on probation for two other first-degree burglary charges.
of his probation, appellant was instructed to complete the chemical dependency
program at the Eden Men’s Program, complete the aftercare program, submit to
random UA analysis, meet with his probation officer, and remain law
abiding. During the revocation hearing,
appellant’s probation officer testified that appellant failed to appear for a
scheduled appointment on July 27, 2005, and that he did not respond to a
message that she left him. And although
appellant graduated from the primary care at
On October 6 and 11, 2005, respondent asked the district court to revoke appellant’s probation for failing to complete aftercare, failing to complete halfway house placement, failing to report to his probation officer, and failing to remain law abiding. At the Morrissey hearing and revocation, the state presented evidence of another burglary, or at the very least, possession of stolen property by appellant. The state presented testimony from employees of the pawn shop in which the stolen goods, which included over $500 of electronics stolen from a home during the night, were later found by tracking the serial number. The pawn shop employees stated that their customary practice and store policy is to check the photo identification of any individual seeking to pawn items in the store. They also require a signature from that individual. Appellant’s name appeared on the pawn slip. Testimony from the victim of the thefts describing the items that had been taken is also included in the record.
Appellant appeared in court, arguing that respondent did not prove the violations of probation by clear and convincing evidence and that the need for confinement did not outweigh the policies favoring probation. The district court found that clear and convincing evidence demonstrated that appellant committed each of the alleged violations, that the violations were intentional and inexcusable, and that the need for confinement outweighed the policies favoring probation. The district court stated that if it did not revoke appellant’s probation, the seriousness of the violation would be depreciated. Consequently, the district court revoked appellant’s probation and executed his sentences to run concurrently. This appeal followed.
D E C I S I O N
A district 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.
court made the proper findings before revoking probation is a legal question subject to de novo review. State v. Modtland, 695 N.W.2d 602, 605 (
The district court must consider
three factors on the record before revoking probation.
Here the district court satisfied
all three factors before it revoked probation.
The district court addressed the first
Appellant argues that the state did not prove by clear and convincing evidence that appellant failed to abide by the law and thereby violated his probation. Appellant contends that the witnesses called by the state could not identify appellant as the person that pawned the stolen items, and thus, the state could not prove that it was appellant that pawned the stolen property. However, the record shows that it was the practice of the two pawn store employees (and store policy) to require potential customers to produce photo identification before completing the exchange. In addition to providing identification, the individual is required to sign the pawn slip. Here, the pawn slip for the stolen items reflected that appellant was the individual who had pawned those items; appellant’s name was signed on the pawn slip.
Appellant asserts that the state should have produced the pawn store’s video surveillance tape of the day in question. However, the sergeant assigned to the case testified that he had been informed that the tape did not exist. The owner of the pawn shop tried to assist the sergeant in finding the tape, but the owner found that “apparently an employee had not turned on the video equipment immediately upon opening the business. Therefore, when the transaction pawn was made, that was not caught on video.” The record supports the district court’s findings, and the district court did not clearly abuse its discretion in evaluating the first factor.
Finally, the third
(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.
argues that the district court did not give due consideration to the policies
favoring probation. Appellant contends
a district court has made the findings required under
district court reasonably determined that appellant had violated his probation. The district court made the requisite