This opinion will be unpublished and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
Leonard Fisherman, Jr.,
Filed July 10, 2007
Itasca County District Court
File No. K5-03-1599
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John J. Muhar,
John M. Stuart, State Public
Defender, Richard Schmitz, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Willis, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant argues that the district court abused its discretion by revoking his probation because the evidence does not support its determination that the need for confinement outweighs the policies favoring probation. We affirm.
On August 6, 2003, appellant Leonard Fisherman Jr. was charged with three counts of second-degree assault, in violation of Minn. Stat. §§ 609.222, subd. 1, 609.11 (2002), for allegedly stabbing three people during a fight. On August 28, 2003, Fisherman entered into a plea agreement by the terms of which he would enter an Alford plea to each of the three charges and serve 12 months in jail, and the remainder of his sentence would be stayed. The district court accepted the plea and sentenced Fisherman to concurrent prison terms of 45 months, 57 months, and 60 months but stayed execution of the sentences and placed Fisherman on probation, subject to the conditions that he serve 12 months in jail; not use, possess, or purchase alcohol or controlled substances; remain law-abiding; pay all fines and restitution; stay in contact with his agent; and have no contact with the victims.
In June 2005, Fisherman’s probation agent alleged that Fisherman had violated the conditions of his probation. Fisherman admitted that he failed to abstain from controlled substances and alcohol, that he failed to maintain agent contact, and that he failed to remain law-abiding by being convicted of misdemeanor fleeing a peace officer. At the April 3, 2006 probation-revocation hearing, Fisherman’s probation agent testified that after Fisherman served his probationary jail sentence, he did “fairly well in many respects” but that when Fisherman was denied housing at a community college because of his criminal record, he “just kind of blew up.” The probation agent also testified that after February 2005, Fisherman stopped maintaining regular contact with him, although the probation agent stated that Fisherman called him in September 2005 to ask what would happen if Fisherman surrendered himself to law enforcement.
Fisherman testified that although he was advised to turn himself in, it was hard for him to bring himself to do so because of his sense of responsibility to his pregnant girlfriend. Fisherman also testified that before his arrest, he was working with a member of the Minnesota Drug Task Force because he “wanted to give back” to society. In addition, two of Fisherman’s adult-education teachers testified that while he was their student, Fisherman had a “good attitude” and was “very motivated.” And Fisherman’s girlfriend testified that Fisherman worked very hard at improving his situation when he was released from jail—obtaining a driver’s license for the first time and working on his G.E.D. But Fisherman’s girlfriend also testified that after Fisherman lost his job because his truck broke down and the couple lost their home, Fisherman became “frustrated” and stopped maintaining contact with his probation agent.
Following the hearing, the district court revoked the stay of execution of Fisherman’s sentences. The district court found that Fisherman’s probation violations were intentional and inexcusable. And noting that Fisherman failed to abstain from alcohol and controlled substances and failed to maintain contact with his agent, the district court found that there was a danger to public safety if Fisherman’s probation were not revoked. Further, referring to a defense psychologist’s report that was prepared for the probation-revocation hearing, the district court found that Fisherman suffered from personality issues that are not “matters that treatment is particularly effective with.” This appeal follows.
D E C I S I O N
A district court has broad
discretion when determining whether to revoke probation, and it will not be
reversed absent an abuse of that discretion. State v.
Ornelas, 675 N.W.2d 74, 79 (
Fisherman argues that the record
does not support the district court’s determination that the need for
confinement outweighs the policies favoring probation. With regard to this factor, the district court
must consider: (1) whether confinement
is necessary to protect the public; (2) whether the defendant needs correctional
treatment that can best be provided in prison; and (3) whether not revoking
probation would depreciate the seriousness of the defendant’s offense.
Fisherman contends that the violations of the conditions of his probation “d[o] not implicate public safety concerns” because “there are mitigating facts surrounding [the] violations,” arguing that it was only after he was denied housing at a community college that his “struggles on probation” began. The district court specifically addressed public safety and determined that Fisherman’s failure to abstain from controlled substances and alcohol raises public-safety concerns because it calls into question Fisherman’s “ability to stay crime free, particularly with the violent background of Mr. Fisherman.” Given the fact that Fisherman was convicted of a stabbing that occurred in a bar, the district court’s conclusion was not an abuse of discretion.
The record also shows that the district court addressed the other two relevant considerations. Fisherman argued to the district court that he could receive treatment outside of prison, noting that mental-health services were available to him. But based on the psychologist’s report, the district court determined that such services would not provide effective treatment for Fisherman. See Austin, 295 N.W.2d at 251 (noting that fact that treatment had failed was a ground on which defendant’s probation was properly revoked). And the district court concluded that not revoking Fisherman’s probation would unduly depreciate the seriousness of his offense, noting that Fisherman had not made it a priority to abstain from controlled substances and alcohol and that Fisherman’s failure to maintain contact with his agent “makes it extremely difficult to see how he can be amenable to probation.” We conclude, therefore, that the district court’s determination that the need for confinement outweighs the policies favoring probation was not an abuse of discretion. See id.
Fisherman raises a number of arguments in his pro se supplement brief, none of which warrants relief. Fisherman argues that his violations of the conditions of his probation were not inexcusable because he needed help that he never got. But Fisherman failed to maintain contact with his probation agent, and, consequently, his probation agent could offer Fisherman no help. Fisherman argues also that the need for confinement does not outweigh the policies favoring probation because his “use of alcohol does not warrant revocation.” But Fisherman’s probation was not revoked only because he failed to abstain from alcohol; the revocation also was based on Fisherman’s failure to remain law-abiding and failure to maintain contact with his probation agent.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.