This opinion will be unpublished and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
McKinley L. Mays,
Filed September 18, 2007
Hennepin County District Court
File No. 04036820
Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
The district court stayed the imposition of sentence, subject
to probationary conditions, on McKinley Mays’s conviction of first-degree
controlled substance offense. When Mays was
discharged for breaching conditions of his halfway-house program, the district
court revoked probation and executed the stayed sentence. Mays successfully appealed the revocation,
arguing that the district court failed to consider the factors set out in State v. Austin, 295 N.W.2d 246 (Minn.
1980). On remand, the district court
addressed the three
F A C T S
McKinley Mays was arrested for possession of more than twenty-five grams of cocaine, and he was charged with first-degree controlled substance crime under Minn. Stat. § 152.021, subd. 2(1) (2002). In pretrial negotiations, Mays agreed to plead guilty with the understanding that the district court would stay the imposition of the presumptive executed sentence of eighty-six-months imprisonment on the condition that Mays enter and complete chemical-dependency treatment. At the guilty-plea hearing the district court instructed Mays that he would be released to the in-patient treatment program followed by aftercare and, if he was not successful, he would be required to serve the presumptive prison sentence.
Mays successfully completed inpatient treatment and then moved to the treatment center’s halfway house to begin his aftercare program. Although Mays continued to attend aftercare meetings, he was discharged from the halfway house for failure to comply with its policies and contracts.
Because Mays failed to complete the halfway-house program, the district court concluded that Mays violated the conditions of his probation, revoked the stay, and executed a seventy-four-month prison sentence.
his first appeal, Mays challenged the district court’s decision on two
grounds. First, Mays argued that his plea
agreement did not require him to complete the halfway-house program. Second, Mays argued that the district court
failed to make findings on the three
remand, the district court addressed the second and third
D E C I S I O N
district court has broad discretion in determining whether to revoke
probation. State v. Ornelas, 675 N.W.2d 74, 79 (
a challenge to the sufficiency of the evidence, we review the district court’s
findings of fact for clear error. State v. Ray, 659 N.W.2d 736, 742 (Minn.
2003). In revocation proceedings, the
state has the burden of proof and must present clear and convincing
evidence. Ornelas, 675 N.W.2d at 79.
The clear and convincing evidence must establish that the probationer
has violated “conditions of probation and
that probation should therefore be revoked.”
Mays argues that the state failed to produce sufficient evidence to show that his probation violation was intentional or inexcusable. The meaning of “intentional or inexcusable” has not been specifically developed. One explanation of the standard is that:
[I]t must be proved that compliance was within the defendant’s ability and that he or she deliberately failed to do so, though the courts have not been consistent in applying this requirement. In general, however, it seems clear that the state must prove both an intentional violation and the lack of a reasonable excuse for noncompliance.
9 Henry W. McCarr & Jack S.
Nordby, Minnesota Practice § 36.47,
subd. D (3d ed. 2006). The core of the requirement
seems to be that the state must prove that the probationer did not make a good-faith
effort to comply with the requirement.
In this case, the only evidence in the record that Mays’s violation was intentional or inexcusable is the discharge summary from the halfway house. The discharge summary states:
Client made little progress while in our program. Client did put forth some effort to get involved but his negative attitude and behavior continued to be a problem. Client was discharged after several contracts and restrictions failed.
The discharge summary states that Mays made “minimum progress” in seeking employment or school admission, working on life management issues, and creating long-and short-term goals. In addition, it notes that Mays “will need to work on his attitude.”
Although the evidence is less concrete than we would prefer, we cannot conclude that the district court’s finding was clearly erroneous. The record indicates that the halfway house made multiple attempts to work with Mays. The record does not provide the text of the “several contracts and restrictions” that Mays breached, but it does establish that Mays was not in compliance with the halfway-house program. The district court could reasonably infer that the contracts related to one or more of the four goals listed on the discharge summary—seeking employment, working on life-management issues, participating in the aftercare group, and creating short- and long-term goals. Thus, the discharge summary gave the district court specific information about Mays’s failures in the halfway house. The district court could therefore conclude that his conduct in the halfway house was inexcusable. The record contains no indication that the conduct was accidental or unintentional, and the discharge summary’s reference to attitude and “minimum progress” supports a determination that Mays did not make a good-faith effort to comply with the requirements of the program.
The district court specifically referred to the third finding required under Austin and Modtland:
With regard to the third Austin factor, this court is well-versed in the benefits of probation as opposed to confinement of Defendants. In this case, Mr. Mays was given an opportunity to complete a full course of treatment and aftercare, and only after doing so would he avoid the extensive commitment to prison. Mr. Mays pled guilty to first degree possession of controlled substances, a serious offense that, absent policies favoring probation and restorative justice, would ordinarily send him to prison for 86 months. Despite his initial progress in treatment, the seriousness of the offense, when combined with the unexcused violation of a generous plea agreement justifies the confinement of Mr. Mays to prison.
Mays challenges the sufficiency of the evidence to support the district court’s finding.
In determining whether the need for confinement outweighs the policies favoring probation, the district court must base its decision on “the original offense and the intervening conduct.” Modtland, 695 N.W.2d at 607 (quotation omitted). The court should consider (1) whether confinement is necessary to protect the public from further criminal activity, (2) whether the offender is in need of treatment that can most effectively be provided if confined, or (3) whether it would unduly depreciate the seriousness of the violation if probation were not revoked. Id.
The evidence suggests that Mays was less of a risk to the public at the time of revocation than he was when he pleaded guilty because he had successfully completed in-patient treatment and was attending aftercare meetings. But the three considerations discussed in Modtland provide a basis for the district court’s conclusion that the need for confinement outweighed the policies favoring probation.
First, because Mays’s original offense involved drugs and Mays failed to complete the halfway-house treatment program, Mays would be more likely to commit further drug-related offenses. Thus, the evidence reasonably supports the district court’s reasoning that confinement was necessary to protect the public from further criminal activity. Second, because Mays failed to successfully complete the halfway-house program while on probation, the evidence reasonably supports the inference that Mays was in need of treatment that could most effectively be provided in prison. Third, the record also indicates that the halfway-house program was a relatively large part of the plea agreement. Thus, the evidence supports the district court’s reasoning that it would unduly depreciate the seriousness of the violation if probation were not revoked.
In light of these considerations, the evidence was sufficient to support the district court’s conclusion that the need for confinement outweighed the policies favoring probation. Therefore, the district court’s finding on the third Austin factor was not clearly erroneous.