This opinion will be unpublished and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
Michael Wayne Olson,
Carlton County District Court
File No. 09-K2-00-000563
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Thomas H. Pertler, Carlton County Attorney, Nichole J. Carter, Assistant County Attorney, Room 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)
John M. Stuart,
State Public Defender, James R. Peterson, Assistant State Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In challenging the revocation of his
probation imposed for
second-degree controlled-substance offense, appellant argues that the district
court erred in basing revocation on a single relapse into drug use without
making any finding on the third
In May 2000, appellant Michael Olson sold $400 worth of methamphetamine to a police informant and was subsequently arrested and charged with controlled-substance offenses in the second, fourth, and fifth degrees. In July 2003, he pleaded guilty to controlled-substance crime in the second degree, intent to sell; the other two charges were dismissed. Under the terms of the plea agreement, appellant was sentenced to 108 months, with a stay of execution, and placed on probation for five years. The sentence was a dispositional departure from the sentencing guidelines. The special terms of his probation mandated that he (1) serve 18 months at Northeast Regional Corrections Center (NERRC); (2) complete treatment; and (3) abstain from the use of alcohol and mood-altering chemicals and submit to random testing.
Between March 2005 and November 2005, appellant appeared in court several times for alleged probation violations. On November 21, 2005, a probation revocation hearing was conducted. At the hearing, appellant admitted to pleading guilty in St. Louis County District Court to one count of fourth-degree possession of a controlled substance, one count of third-degree possession of a controlled substance, and fleeing a peace officer in a motor vehicle. He also admitted to failing to (1) keep in contact with the probation officer, (2) submit to required urinalysis testing, and (3) abstain from the use of controlled substances. The district court revoked probation and executed the previously stayed 108-month sentence. This appeal followed.
D E C I S I O N
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.
probation, the district 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.”
(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.
supreme court reaffirmed the central holding from
In reviewing the record before us, we are mindful of the
mandates clearly set out in Austin and
Modtland. Here, the only challenge raised by appellant
is directed to the third
At the revocation hearing, the district court noted appellant’s extensive criminal history, including convictions for controlled substance related crimes occurring while he was on probation for the offense that is the subject of the probation revocation this court is reviewing. Specifically, the court stated:
I mean to—again, all things being equal, the 100—he should have been—he should have been serving the 108-month sentence. However, over and above that, I also erred the last time on the side of giving him the benefit of participating in a very intense treatment program, staying execution of the sentence, putting him on probation, giving him substantially less time in jail or prison, and giving him a chance to be involved in a very intense treatment program at NERCC, where he served the local jail sentence.
. . . .
I wish we weren’t—I wish we weren’t here today. I wish we weren’t here today. I wish that the treatment had been—had been successful. But since that time, [appellant] committed what would have been, I guess, his—if I’m right, approximately his eighth and then his ninth controlled substance crimes. In addition, fleeing a peace officer while in a motor vehicle. And again, this is after he—he refused testing to confirm his abstinence as he was required to do. He wasn’t reporting to his probation agent. It—this is not a technical violation. This is a very clear and direct violation of what was a downward departure at the time of sentencing.
The district court further stated that “I feel compelled to [revoke appellant’s probation] at this time. I think to do anything else would be a miscarriage of justice.”
We conclude that
the district court clearly had all of the
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.