This opinion will be unpublished and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
Thang Van Tran,
Filed August 21, 2007
Stearns County District Court
File No. K2-97-1504
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John M. Stuart, State Public
Defender, Philip Marron, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, 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 his probation, arguing that the successful completion of chemical-dependency treatment was not a condition of his probation and that the district court abused its discretion when it determined that appellant’s probation violations were intentional and that the need for confinement outweighs the policies favoring probation. We affirm.
In April 1997, appellant Thang Van Tran was charged with one count of first-degree criminal sexual conduct for engaging in sexual intercourse with a child under the age of 13. Tran pleaded guilty to the charge under a plea agreement that provided that the imposition of Tran’s sentence would be stayed for 30 years on the conditions that Tran serve 45 days in jail; pay restitution, extradition costs, and a $3,500 fine; complete a sex-offender treatment program; have no contact with gang members; “not . . . frequent any establishments in which minors are known to appear”; and have no contact with the victim.
On July 30, 2002, Tran was convicted of fifth-degree domestic assault. The district court lifted the stay of imposition of Tran’s sentence on the 1997 charge and imposed a sentence of 86 months’ imprisonment, but the district court stayed the sentence subject to the conditions that Tran serve an additional 30 days in jail, abstain from mood-altering chemicals, submit to random drug testing, and complete any programming required by his probation agent.
In 2004, Tran violated the conditions of his probation by using illegal drugs and missing a scheduled urinalysis. As a result, the district court executed 90 days of Tran’s sentence, staying the remainder of the sentence on the condition that Tran complete a chemical-dependency assessment and follow all recommendations of that assessment. In 2005, Tran again violated the conditions of his probation by using methamphetamine and failing to maintain contact with his probation agent, and the district court executed an additional 25 days.
In November 2005, court services alleged that Tran violated the conditions of his probation by failing to follow the recommendations of the chemical-dependency assessment and by failing to maintain regular contact with his probation agent as directed. Tran denied the allegations, and on January 26, 2006, a probation-revocation hearing was held.
At the hearing, Tran’s probation agent testified that in July 2005, Tran completed a chemical-dependency assessment that recommended outpatient chemical-dependency treatment. The agent testified that although Tran began treatment, he stopped attending in October 2005. The probation agent testified that Tran called him in December 2005 and left a message telling the agent that Tran was having difficulty paying for treatment. In addition, the probation agent testified that Tran had been instructed to visit the probation agent’s office every Monday, Wednesday, and Friday but that he stopped doing so in November 2005. Tran denied that he failed to maintain contact with his agent, testifying that he called the agent “two or three times” to tell the agent that Tran had been unable to pay for the chemical-dependency treatment.
The district court found that Tran intentionally violated the conditions of his probation by failing to complete chemical-dependency treatment, noting that it “[w]ould have been [Tran’s] responsibility [after being terminated from the program] to ensure that he got back into another program and he’s failed to do that.” The district court also determined that Tran intentionally violated a condition of his probation by failing to maintain regular contact with his agent, noting that “[t]o make a phone call in December and then wait months without hearing from his agent would be a violation” of the conditions of his probation. Because Tran “was well aware of . . . the terms of his probation and he [still] violated those terms,” and because of Tran’s lengthy record of violations, the district court determined that the need for confinement outweighs the policies favoring probation. The district court revoked the stay of execution and committed Tran to prison for 86 months. This appeal follows.
D E C I S I O N
argues that the district court abused its discretion by finding that he
violated the conditions of his probation. A district court has broad discretion in
determining whether there is sufficient evidence to revoke probation, and we
will not reverse the district court unless it abuses that discretion. State v.
argues first that he did not violate the conditions of his probation because
“[t]he requirement that [Tran] complete the treatment program was imposed by
the recommendation of the Rule 25 evaluation and was not expressly imposed by
the court.” Before a probation violation
can occur, “the condition alleged to have been violated must have been a
condition actually imposed by the court.” State v.
Ornelas, 675 N.W.2d 74, 80 (
Tran relies on the Minnesota Supreme Court’s
The requirement that a defendant participate in chemical-dependency
treatment is defined in section 609.135 as an intermediate sanction. Minn. Stat. § 609.135, subd. 1(b). Thus, the district court has the exclusive authority
to impose chemical-dependency treatment as a condition of probation. See
The district court may not have expressly identified the exact requirements of Tran’s chemical-dependency treatment (i.e., inpatient versus outpatient, group therapy versus individual sessions, etc.), nor did the district court use the words “chemical-dependency treatment” when it imposed the condition. But when the district court imposed the condition that Tran complete a chemical-dependency assessment and follow all recommendations, it imposed as a condition of Tran’s probation that he successfully complete any recommended treatment. See id. (noting that “some flexibility in the administrative implementation of probation conditions is desirable”). The chemical-dependency assessment was part of the administrative implementation of the condition, namely, identifying what treatment, if any, was appropriate for Tran. We conclude that this was not an improper delegation of the district court’s sentencing authority.
But even if the successful completion of chemical-dependency treatment was not imposed as a condition of Tran’s probation, failure to complete that treatment was not Tran’s only violation: the district court found that Tran also violated a condition of his probation by failing to maintain regular contact with his probation agent. And at the probation-revocation hearing, Tran’s probation agent testified that Tran stopped maintaining regular contact with him in November 2005. Thus, we conclude that the record supports the district court’s determination that Tran violated the conditions of probation.
argues next that the evidence is insufficient to find that he intentionally
violated the conditions of his probation. See Austin, 295 N.W.2d at 250 (
contends finally that the district court abused its discretion by finding that
the need for confinement outweighs the policies favoring probation, arguing
that his probation violations do “not indicate that he was a danger to commit
any further criminal or anti-social acts.” When determining whether the need for
confinement outweighs the policies favoring probation, the district court must
consider whether confinement is necessary to protect the public safety.