This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


State of Minnesota,


Edward Everett Urbanek,

Filed August 13, 1996
Schumacher, Judge

Hubbard County District Court
File No. K693397

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 
Minnesota Street, St. Paul, MN 55101 (for Respondent)

Gregory D. Larson, Hubbard County Attorney, Hubbard County 
Courthouse, Park Rapids, MN 56470 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant 
Public Defender, 2829 University Avenue Southeast, Suite 600, 
Minneapolis, MN 55414 (for Appellant)

	Considered and decided by Short, Presiding Judge, 
Schumacher, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

	This appeal is from an order revoking probation that the 
court had imposed following appellant Edward Everett Urbanek's 
1994 conviction for second-degree criminal sexual conduct.  See 
Minn. Stat.  609.343, subd. 1(g) (1994).  Urbanek argues that the 
trial court abused its discretion in revoking probation, that he 
should be allowed to withdraw his guilty plea, that he was denied 
his right to be present at the hearing, and that he is entitled to jail 
credit for his time in a treatment program.  We affirm.


	Urbanek was charged with two counts of first-degree 
criminal sexual conduct for sexual penetration of his girlfriend's 
four-year-old daughter.  He pleaded guilty to the lesser offense of 
second-degree criminal sexual conduct, under a plea agreement 
calling for him to serve one year in jail, and to be evaluated before 
sentencing at the Minnesota Security Hospital at St. Peter for 
admission to the Intensive Treatment Program for Sexual 
Aggressives (ITPSA) program.  If admitted to the ITPSA program, 
Urbanek would receive a stayed sentence, and be required, as a 
condition of probation, "to successfully complete that program or 
serve the prison sentence."  If Urbanek was not accepted into 
ITPSA, the court would allow him to withdraw his guilty plea.
	Urbanek was admitted to the ITPSA program, although no 
opening was available at the time of sentencing.  Urbanek entered 
the ITPSA program on June 29, 1994.  The ITPSA program 
requires the offender to complete four treatment phases.  Urbanek 
was discharged from ITPSA on October 3, 1995, 15 months after 
his admission.  At the time, he was nearing the end of Phase II of 
the program.  According to the testimony of Urbanek's probation 
agent, he had been told by ITPSA staff that the program was 
relocating, and that only those people who had moved on to Phase 
III would be allowed to continue with the program.  Although 
many of the reports concerning Urbanek's treatment had been 
favorable, Urbanek's probation officer testified that Urbanek had 
been told before his October 1995 discharge that he would have to 
increase his level of participation in order to continue, and that he 
failed to do so.
	The trial court issued an order committing Urbanek to the 
Department of Corrections for the 65-month sentence, and giving 
him credit for 409 days spent in jail, but denying credit for the 
ITPSA treatment in the security hospital.  The trial court later 
issued a second order, following a hearing, denying Urbanek's 
motion to vacate the first order, but issuing findings of fact on the 
revocation issue.


	1.	The trial court's decision to revoke probation will not 
be reversed absent a clear abuse of discretion.  State v. Austin, 295 
N.W.2d 246, 249-50 (Minn. 1980); State v. Ehmke, 400 N.W.2d 
839, 840 (Minn. App. 1987).  Although most revocations are based 
on the wilful conduct of the probationer, probation may also be 
revoked if the intended sentencing alternative becomes 
unavailable.  See State v. Morrow, 492 N.W.2d 539 (Minn. App. 
1992) (probation revoked because funding for treatment program 
could not be found); State v. Thompson, 486 N.W.2d 163, 165 
(Minn. App. 1992) (treatment program to which defendant was 
sent as condition of probation became unavailable).
	The record supports the trial court's determination that 
Urbanek failed to meet the ITPSA program's standard for 
continuation in the program.  Urbanek may have been making 
satisfactory progress up until June of 1995, and the relocation of 
the program was a factor beyond his control.  But under Morrow 
and Thompson, the trial court was not required to eliminate from 
consideration all factors beyond Urbanek's control before revoking 
probation.  The plea agreement and sentence required that Urbanek 
complete ITPSA, not merely that he make a good faith effort to do 
	Urbanek argues that the trial court abused its discretion in 
failing to hold a dispositional hearing at which evidence of 
alternative treatment programs could be presented.  But Urbanek 
could have presented such evidence at the probation revocation 
hearing.  Urbanek has cited no authority holding that the state has a 
burden of showing that alternative treatment options have been 
explored, or that the court must do so on its own motion.
	2.	Urbanek argues that he was discharged from ITPSA 
because of changes in the program that were not contemplated at 
the time of the plea bargain, and therefore he is entitled to 
withdraw his guilty plea.  This argument assumes that Urbanek 
was discharged due entirely to reasons beyond his control, without 
fault on his part.  As discussed above, the trial court did not abuse 
its discretion in finding Urbanek willfully violated this condition of 
his probation.  Moreover, the claim that the continuation of ITPSA 
at the same facility, with the same size program, was an essential 
term of the plea agreement, on which Urbanek had a right to rely, 
is without merit.
	3.	Urbanek argues that the trial court denied his right to 
be present when it failed to continue the hearing on the motion for 
reconsideration held in his absence. When Urbanek was sentenced, 
he was present, as required by Minn. R. Crim. P. 27.03, subd. 2.  
Urbanek was also present at the probation revocation hearing.  We 
find no right, explicit or implied, of a defendant to be present at a 
hearing on a motion for reconsideration of probation revocation.
	4.	Urbanek argues that the trial court should have 
granted his request for jail credit for the time he spent in the 
ITPSA program.  He also argues that by extending his probationary 
jail term beyond one year, the trial court in effect "executed" his 
sentence, providing another basis for awarding jail credit for the 
ITPSA time.
	A defendant is not entitled to jail credit for time spent in 
treatment, even in a locked security hospital such as St. Peter.  
State v. Peterson, 359 N.W.2d 708, 710 (Minn. App. 1984), review 
denied (Minn. Mar. 13, 1985); see also Minn. Sent. Guidelines 
cmt. III.C.02 (credit should not be extended for time spent in 
residential treatment facilities as condition of probation); State v. 
Danh, 516 N.W.2d 539, 545 (Minn. 1994).
	The trial court had no authority to deny Urbanek jail credit 
in 1994 against his probationary jail term.  But Urbanek did not 
challenge the sentence, and has now received jail credit for all his 
time in the county jail.  There is no support for Urbanek's theory 
that the denial of credit resulted in a de facto executed sentence in 
1994, or that that would transform his time in treatment into prison 
time for which credit must be given.


     * Retired judge of the Minnesota Court of Appeals, 
serving by appointment pursuant to Minn. Const. art. VI,  10.