This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
John Patrick Murphy,
Filed December 18, 2007
Ramsey County District Court
File No. K2-93-1209
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sean Michael McGuire, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*
John Patrick Murphy challenges the district court’s execution of sentences totaling 330 months, which were initially stayed when the court sentenced him in 1994. The district court executed the sentences after Murphy violated several conditions of his probation. Murphy argues that the district court’s decision violated his due process rights because he was never placed on probation for all five counts now executed and therefore could not have violated their probationary conditions, and that the execution of his sentences was not justified by the district court’s findings. Because Murphy’s probationary sentences were structured so that his entire probationary period could be revoked for any violation of the conditions of his various sentences, we affirm.
In 1994, the state charged Murphy with 34 counts of terroristic threats, conspiracy to commit terroristic threats, criminal damage to property, and burglary. State v. Murphy, 545 N.W.2d 909, 912 (Minn. 1996). The Minnesota Supreme Court later summarized the terrorizing actions for which he was charged:
The nature of Murphy’s conduct extends from the heinous to the puerile, including placing dead animals and animal parts—birds, cats, rabbits, deer, and squirrels—at his victims’ houses; planting fake bombs; dumping oil and blood on houses; spraypainting epithets and obscenities such as “slut whore,” “slut bitch,” and “fag, queer, homo,” as well as messages such as “I’ll come back,” “I be back,” and “I will be back,” on houses and garages; puncturing over 150 tires, breaking car windows, “keying” or scratching cars and damaging car interiors; cutting telephone wires; throwing rocks, bricks, concrete chunks, beer and pop cans and other objects through windows; egging houses and garages; placing broken beer bottles in front of a garage; and calling in fictitious pizza orders and placing fictitious want ads.
Id. Murphy pleaded guilty to ten counts of terroristic threats and one count of conspiracy to commit terroristic threats. Id. He agreed to serve an executed prison sentence followed by several periods of supervised probation. Id.
At the reading of Murphy’s guilty plea, the court asked, “Do you . . . understand that the way this matter is put together that any violations along in the future could lead to an execution of a substantial sentence to perhaps as much as 40 years?” Murphy acknowledged that he did understand.
The district court sentenced Murphy to 96 months in prison and 450 months of probation. Id. The probationary period was made up of seven stayed 60-month sentences and one stayed 30-month sentence. At the sentencing hearing, the district court entered identical probationary sentences for several of the counts, explaining that probation for each count would commence at the termination of probation for the previous count. The court listed several probationary conditions associated with Murphy’s sentences. Following the reading of all of Murphy’s sentences, this exchange took place:
THE COURT: All of the subsequent probations are consecutive, and there will be a time when you will be on probationary supervised release and consecutive probations at the same time.
. . . .
[PROSECUTOR]: The total of the consecutive probationary period is 450 months. If [Murphy] is revoked on any violation of terms and conditions of his sentence, at that time that would be executed and be would [sic] an additional 450 months.
[DEFENSE COUNSEL]: To set the record straight, Your Honor, it would be a potential 450 months.
THE COURT: Mr. Murphy, you understand that these sentences do not commence until the earlier sentence has terminated?
THE DEFENDANT: Once I am off my supervised release?
THE COURT: You will be on probation and those will start each five-year period.
THE DEFENDANT: Probation starts when my supervised release –
THE COURT: No. Probation starts the day you are out of prison. So you will be on supervised release and probation perhaps for a time, but then they are stacked and one case doesn’t start until the other one terminates; do you understand that?
THE DEFENDANT: Yes. You are saying they are consecutive?
THE COURT: That is correct.
Murphy’s plea agreement also provided that he would pay $30,000 in restitution to his victims and would serve his probation at least 150 miles from the Twin Cities. 545 N.W.2d at 912, 918.
In September 1998, Murphy was released from prison and placed on probation within a certain geographic range, and was monitored by a global positioning satellite (GPS) system. Murphy cut off his GPS bracelet and strayed outside the boundaries to which he had been confined. The district court responded by revoking 24 months of stayed time on one of Murphy’s sentences and ordering that he serve that time.
Murphy found trouble again after his release in 2001. He failed to pay restitution to his victims, left Minnesota without his probation officer’s permission, and was arrested in Iowa. The district court revoked 60 months of Murphy’s probation on one of Murphy’s sentences and executed that sentence.
Upon serving this sentence but before being released on probation, Murphy reviewed the conditions with his probation officer. The conditions included obeying all federal, state, and local laws, reporting arrests to his probation officer, and making changes in his employment and residence only with his probation officer’s permission. While on probation, Murphy’s permission to serve time at a halfway house was terminated. In response, the district court reinstated probation and removed Murphy to Moorhead, Minnesota, where he would be under intensive supervision.
In Moorhead, Murphy met with a probation officer, who cautioned him that any contact with law enforcement had to be reported to the officer within 24 hours. Murphy nevertheless failed to inform his probation officer of three separate arrests, and he was arrested for violation of his probation conditions in January of 2006. But three days later, officials inadvertently released Murphy from jail. He never contacted his probation officer and did not attend a scheduled meeting. Murphy finally turned himself in more than one month later.
In March 2006 the district court found that Murphy had willfully violated his plea agreement by failing to inform any probation officer of his 2005 arrest and conviction for fleeing a police officer; failing to inform any probation officer of his 2005 arrest for theft by deception; failing to inform any probation officer of his arrest for false information or report to law enforcement; and failing to maintain contact with his probation officer following his inadvertent release. At the sentencing hearing, the court revoked probation on Murphy’s remaining sentences and committed him to prison for a total of 330 months (27.5 years). This appeal follows.
D E C I S I O N
Murphy challenges the district court’s authority to impose his full term of potential incarceration for all sentences. Whether the district court had the authority to revoke Murphy’s remaining probationary sentences is a question of law, which this court reviews de novo. Minn. R. Crim. P. 27.04; see Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005) (“The interpretation of the rules of criminal procedure is a question of law subject to de novo review.”). Murphy offers several arguments to contest the district court’s authority. He argues that the execution of his remaining sentences modified his original sentence. He maintains that he was never placed on probation for the remaining five counts, and therefore he could not have violated the conditions of probation for those counts. Murphy also asserts that he did not receive notice that the remaining sentences could be revoked, and that he was not notified of the probationary conditions associated with those sentences. None of these arguments persuades us.
Murphy offers no relevant legal authority to support his proposition that the execution of his remaining sentences constituted a modification. The Rules of Criminal Procedure explicitly allow the district court to execute a stayed sentence when a probationer violates the conditions of probation. Minn. R. Crim. P. 27.04, subd. 3. Murphy’s argument relies on inapposite caselaw. For instance, Murphy notes that State v. Walsh established that an error in preparing the presentence investigation worksheet does not authorize the court to modify a lawful sentence. 456 N.W.2d 442, 443-44 (Minn. App. 1990). But that case did not involve a stayed sentence revoked for violations of probation. Id. Murphy cites State v. Allen for the proposition that an executed sentence increases its length when compared with a probationary sentence. But again, the Allen case involved an initial sentencing determination,not one considered in the probation-revocation context. 706 N.W.2d 40, 46 (Minn. 2005). Murphy provides no caselaw that supports his assertion that the execution of a previously stayed sentence for probation violations constitutes a modification of the probationer’s sentence.
Murphy’s alternative argument that he was never placed on probation for the remaining counts is slightly more persuasive. But although Murphy’s sentence as originally pronounced was not particularly clear, the record shows plainly that the parties’ and the court’s understanding was very clear—each understood that Murphy’s entire probationary period was subject to be revoked for any violation of the probationary conditions.
The record establishes that the sentencing court intended to keep Murphy under state supervision for the entire duration of his nearly 40-year sentence. In increasing the length of Murphy’s sentence, the district court did not anticipate that it would lose the power to execute that full sentence. The court’s statements at Murphy’s guilty plea and sentencing hearings demonstrate that the judge fully intended that the entire sentence could be revoked on any violation. Both the prosecutor and defense counsel acknowledged exactly that. And as respondent points out, a contrary result would mean that Murphy could repeatedly and seriously violate probation and receive only a maximum of 60 months in prison for each violation.
The state argues that federal case law interpreting the federal Probation Act supports its position because, under federal law, courts have the authority to revoke probation for pre-probation conduct. The federal authority appears persuasive. See, e.g., United States v. Williams, 15 F.3d 1356, 1358-60 (6th Cir. 1994); United States v. Taylor, 931 F.2d 842, 844-45 (11th Cir. 1991); United States v. Fryar, 920 F.2d 252, 254 & n.3 (5th Cir. 1990); United States v. Johnson, 892 F.2d 369, 372 (4th Cir. 1989); United States v. Daly, 839 F.2d 598, 600-01 (9th Cir. 1988); United States v. Yancey, 827 F.2d 83, 87-88 (7th Cir. 1987);United States v. Veatch, 792 F.2d 48, 51-52 (3d Cir. 1986). In each of these cases, the court concluded that despite the literal language of the Probation Act limiting the court’s authority so that it could not revoke but only change the conditions of probation, the purposes behind the Act were best served by allowing courts to revoke probation when it had been abused. Although these decisions were based on the federal probation statute, the same reasoning may apply here. Moreover, the language of the federal statute has been amended to explicitly permit the court to revoke probation “at any time prior to the expiration of termination of the term of probation” while the state rules are silent regarding when the court may revoke probation. Compare 18 U.S.C. § 3565 (1994) with Minn. R. Crim. P. 27.04. But because we conclude that the sentence imposed by the district court as understood by the parties and the court included the authority to revoke Murphy’s probation for all remaining counts, we do not decide the legal question presented by the state’s argument.
We are not convinced by Murphy’s contention that he was never notified that his probationary sentences could be revoked or told of the conditions of those sentences. Because the record indicates that Murphy didreceive notice that his stayed sentences could be revoked and of the conditions of all his probationary sentences, the argument is factually contradicted. When Murphy pleaded guilty in 1994, he acknowledged that he understood that his probation could be revoked and that he would then face up to 40 years in prison. At his sentencing hearing, he was reminded that a violation of the conditions of his probation could result in the execution of his sentences and up to 450 months of prison time. He was also informed of the conditions. Although at the time of his probation revocation hearing Murphy had not signed a probation agreement on any of the remaining counts, he had been informed that the probationary conditions were identical for all counts. Murphy cannot persuasively dispute that he was notified of these conditions.
Murphy also contends that the district court abused its discretion because the record did not establish that the need for his confinement outweighed the policies favoring his continued probation. The district court has broad discretion in determining if there is sufficient evidence to revoke probation, and it should be reversed only if there is a clear abuse of that discretion. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). The Minnesota Supreme Court has established a three-step analysis that must be applied before probation may be revoked. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). Whether the district court has made the findings required under Austin presents a question of law, which is subject to de novo review. Modtland, 695 N.W.2d at 605.
Under Austin, before the district court may revoke probation it must designate the specific condition or conditions that were violated; find that the violation was intentional or inexcusable; and find that need for confinement outweighs the policies favoring probation. Austin, 295 NW.2d at 250. This process ensures that the district court’s decision is not a “reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.” Id. at 251 (quotations omitted). The Austin court indicated that, in some cases, policy considerations might weigh in favor of continuing the offender on probation. Id. at 250. Imprisonment is appropriate only if the court “finds on the basis of the original offense and the intervening conduct of the offender that . . . it would unduly depreciate the seriousness of the violation if probation were not revoked.” Id.
Murphy does not dispute that the district court made the required Austin findings. He contends that in making those findings, the court focused only on his criminal history and not on his violations of probation. The record belies this contention. The district court’s findings discuss both the original offenses and Murphy’s probation violations.
Murphy also challenges the district court’s reliance on the original offenses in its determination that imprisonment is appropriate. The district court found that continuing probation would “unduly depreciate the seriousness of the original offenses.” Murphy contends that Modtland requires the court to look only at a probationer’s violation behavior in making that determination. But Austin makes clear that the original offenses may also be considered. 295 N.W.2d at 251. And even if the district court did not properly articulate its findings, Murphy’s probation violations, which included a misdemeanor conviction and a month-long disappearance following his inadvertent release from prison, were serious enough to support the court’s decision. We conclude that the district court did not abuse its discretion by revoking Murphy’s probation. As an informative aside, we note that Murphy certainly gave the district court reason to second-guess its decision by considering whether Murphy’s previous incarceration and several probation revocations might have effectively changed Murphy’s sensibilities about his threatening behavior:
THE DEFENDANT: What is my sentence? What are my total sentences?
THE COURT: Twenty-seven and a half years.
THE DEFENDANT: That’s crazy.
. . . .
COURT CLERK: That concludes the calendar.
THE DEFENDANT: That’s crazy. I should’ve punctured your tires.
In his pro se supplemental brief, Murphy makes a number of arguments challenging the district court’s decision to revoke his probation. Two of these are essentially the arguments put forth by his counsel, and these have been addressed in detail above. Murphy also contends that he was denied a fair hearing because the district court admitted hearsay evidence; the prosecutor committed misconduct; he was denied the effective assistance of counsel; and the judge was partial. We find these claims to be without substance. In addition, we conclude that Murphy’s challenges to his original trial and sentence lack merit, as they have been considered and decided in a number of earlier appeals. See State v. Murphy, 545 N.W.2d 909 (Minn. 1996); State v. Murphy, 2003 WL 21743738 (Minn. App. July 29, 2003); Murphy v. State, 2003 WL 1218495 (Minn. App. Mar. 18, 2003); State v. Murphy, 2002 WL 1467447 (Minn. App. July 9, 2002). But we will address Murphy’s argument that because his probation-revocation hearing was not held within seven days of his entrance into custody he was denied due process.
Under the Minnesota Rules of Criminal Procedure, a probation-revocation hearing must be held within seven days of the probationer’s first appearance if the probationer is in custody and not incarcerated on another felony. Minn. R. Crim. P. 27.04, subd. 2(4). Murphy made his first appearance on February 17, 2006. The proceeding was continued to allow Murphy to obtain counsel. Murphy appeared on February 28 for the admit-or-deny hearing. The prosecutor told the court that he would be ready two weeks later, and the court set the adjudicatory hearing for March 10, 2006.
Murphy’s challenge to the district court’s failure to timely hold the hearing fails for two reasons. First, Murphy himself requested that the proceeding be continued. Second, even if the district court’s failure to hold the hearing within seven days was error, Murphy has not alleged that he was prejudiced by the error, and no prejudice is apparent. Reversal is therefore not appropriate. As we previously instructed Murphy in one of his earlier appeals, failure to present evidence of prejudice resulting from the delayed revocation hearing under the rule prevents reversal. State v. Murphy, 2002 WL 1467447, *4 (Minn. App. July 9, 2002).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.