may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
LeRoy Donald LeMay,
Filed October 22, 1996
Ramsey County District Court
File No. K3-94-1553
Hubert Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)
Howard Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for Appellant)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Thoreen, Judge.
This appeal is from an order revoking appellant LeRoy LeMay's probation. LeMay pleaded guilty in 1994 to the gross misdemeanor offense of solicitation to engage in prostitution. Minn. Stat. § 609.324, subd. 2 (1994). LeMay argues that the trial court abused its discretion in revoking his probation. We affirm.
Appellant LeRoy LeMay was charged with engaging in prostitution with a minor. When arrested, LeMay denied that he had any intent to purchase sex from the 15-year-old girl to whom he gave his name and phone number. But LeMay agreed to plead guilty to a reduced charge of solicitation of prostitution, a gross misdemeanor. The PSI recommended that LeMay be required to "complete any counseling program/sexual boundaries educational program as directed by his probation officer." At sentencing, the trial court so ordered, while allowing LeMay to challenge the probation officer's choice of a program.
After LeMay was placed in a six-month sexual boundaries program, he challenged this choice of program, presenting an evaluation recommending that he attend only a weekend sexual assessment program. The trial court concluded that the sexual boundaries program was appropriate and ordered LeMay to "participate" in it.
LeMay participated in the Project Pathfinder sexual boundaries program, but was reassigned to the "R" group, consisting of offenders who were denying or minimizing their offenses. Project Pathfinder later terminated LeMay due to his failure to make progress in the "R" group. The trial court revoked LeMay's probation due to his termination from the treatment program.
D E C I S I O N
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. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985). LeMay argues that it was a clear abuse of discretion to revoke his probation because of the nature of his offense, the statement that he should "participate" in treatment, and his transfer to a program different from the one he had been required to enter.
The record does not support LeMay's argument. The sentencing transcript shows that it was a condition of LeMay's probation that he complete, not just participate in, a sexual offender program as directed by his probation officer. LeMay was allowed to challenge the choice of the Project Pathfinder sexual boundaries program at a hearing. At that hearing, LeMay's probation officer stated that the sexual boundaries program might show a need for further treatment. Thus, LeMay was never told that he would be retained in the Project Pathfinder program, nor that a certain number of sessions of only passive participation would be sufficient.
Nonresponsiveness to treatment or unwillingness to work with a treatment program is adequate grounds for revocation of probation. State v. Rock, 380 N.W.2d 211, 213 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986); Hemmings, 371 N.W.2d at 47. The discharge summary indicates that LeMay, although attending the required sessions, was not sufficiently cooperative to make any progress in the program.
LeMay argues that because he was convicted of only a gross misdemeanor offense, his lack of progress in treatment is excusable and his probation should not have been revoked. But LeMay pleaded guilty to solicitation of a minor. He has exhibited a serious denial or minimization of his offense. It would "unduly depreciate the seriousness" of his violation if probation were not revoked for this failure to cooperate in treatment. Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.