IN COURT OF APPEALS
Wright County District Court
File No. K496645
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Wyman A. Nelson, Wright County Attorney, Kathleen A. Mottl, Assistant County Attorney, Wright County Government Center, 10 Second Street Northwest, Room 150, Buffalo, MN 55313-1189 (for respondent)
Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.
This appeal is from an order revoking probation and executing a prison sentence. We affirm.
On March 7, 1997, Jones was released from jail and entered the NuWay Halfway House for chemical dependency treatment. Eight days later, Jones absconded from NuWay. While absent from NuWay, Jones contacted his probation officer, who urged Jones to turn himself in. Jones did not do so, and he was arrested on April 1, 1997. Following a probation revocation hearing, the district court found that Jones had willfully violated probation conditions but ordered probation continued with the additional condition that Jones successfully complete chemical dependency treatment at Project Turnabout House in Marshall, Minnesota.
Jones entered Project Turnabout on May 13, 1997. He was granted a weekend furlough pass to visit his daughter in Omaha, Nebraska from June 12-15, 1997. Jones did not return from the furlough. On June 16, 1997, Jones contacted Project Turnabout and reported that he had had car trouble, was at the Union Gospel Mission in Sioux Falls, South Dakota, and had found someone willing to give him a ride to Marshall later that day. He also called his probation officer, Peggy Hames, and reported essentially the same information to her. On June 20, 1997, Project Turnabout discharged Jones for being absent without leave after Colleen Tully, the program director, contacted the garage where Jones's car was being repaired and learned that Jones had not contacted the garage.
On June 24, 1997, Jones left a message for Hames. Jones called Hames the next day, and she advised him that he no longer had a bed at Project Turnabout and urged him to call Rosemarie Glynn, his supervising probation officer. Jones called Glynn on June 27, 1997. Glynn informed Jones that an arrest warrant had been issued for him and recommended that Jones turn himself in. Jones did not do so. On July 16, 1997, police arrested Jones.
The district court conducted a probation revocation hearing. Tully testified that initially Jones did quite well at Project Turnabout, but, after about two weeks in the program, he began having conflicts with authority and feeling he was being treated unfairly. Glynn opined that Jones was not amenable to probation because he absconded from supervision and failed to complete treatment programs twice. Glynn testified that, since 1987, Jones had entered eight different treatment programs and left at least four of them before completion. His longest period of sobriety was from sometime in 1994, when he attended an outpatient treatment program, until November 1995. Glynn testified that a treatment assessment conducted while Jones was in jail recommended that Jones complete chemical dependency treatment before sex offender treatment.
Before revoking probation,
the court must 1) designate the specific [probation] condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.
Id. at 250. Revocation followed by imprisonment is a permissible disposition when "it would unduly depreciate the seriousness of the violation if probation were not revoked." Id. at 251.
The district court found:
9. [Jones] violated conditions of his probation by absconding from supervision and failing to complete treatment at Project Turnabout.
10. [Jones's] failure to stay in contact with supervising agents after his furlough time had run out, resulting in cancellation of his treatment at Project Turnabout, and his failure to turn himself in when requested to do so was inexcusable.
11. [Jones] has demonstrated an unwillingness to comply with the requirement that he remain under supervision while on probation, after being convicted of a crime for which probation with the condition of supervision is reasonable and necessary.
12. [Jones's] interest in freedom and policies favoring probation are outweighed by the need for confinement and the state's interest in insuring [Jones's] rehabilitation and the public safety.
13. It would unduly depreciate the seriousness of the violation if probation were not revoked.
Jones argues that the probation violations were not intentional or inexcusable because his extended absence from Project Turnabout resulted from his car breaking down and he did not intend to abscond. But even if Jones was unable to find immediate transportation back to Minnesota, he could have maintained contact with probation officers. He claims he failed to stay in contact because he could not afford additional long-distance telephone calls. But Glynn testified that her office accepts collect calls. Moreover, after returning to Minnesota, Jones spoke to Hames on June 25, 1997. Hames advised Jones to contact Glynn, but Jones did not do so until two days later. Glynn advised Jones to turn himself in, but he failed to do so and remained at large until he was arrested on July 17, 1997. The evidence supports the district court's finding that Jones's failure to stay in contact with probation officers after his furlough time expired and his failure to turn himself in when requested to do so were inexcusable.
Jones contends that he deserves another chance at treatment. Although there was evidence that Jones understood the concepts of recovery from chemical dependency and did well while at Project Turnabout, his failure to complete the program at Project Turnabout was the second time in three months that he failed to complete a treatment program. Also, the state presented evidence that Jones had a ten-year history of treatment failures. Jones was convicted of using force or coercion to accomplish sexual penetration, and the state presented evidence that he needed to complete chemical dependency treatment before sex offender treatment. The serious nature of Jones's offense together with his history of treatment failures support the district court's finding that the state's interest in insuring Jones's rehabilitation and the public safety outweighed Jones's interest in freedom and policies favoring probation.
Jones cites Austin and the sentencing guidelines to support his argument that the district court should not have revoked his probation.
The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. There must be a balancing of the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety. The decision to revoke cannot be "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 250-51 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978) (quoting Morrissey v. Brewer, 408 U.S. 471, 479, 92 S. Ct. 2593, 2599 (1972)); see also Minn. Sent. Guidelines III.B ("decision to imprison an offender following a revocation of a stayed sentence should not be undertaken lightly" but is justified when "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay").
Austin permits revocation "as a last resort when treatment has failed." Jones absconded from NuWay in March 1997. The district court did not revoke probation at that time. Instead, the court ordered Jones to complete a treatment program at Project Turnabout. Jones failed to return to the program following a weekend furlough in June 1997. Under these circumstances, the district court's decision to revoke probation was not a reflexive reaction to an accumulation of technical violations. By absconding from the treatment programs, Jones failed to satisfy one of the principal conditions of his probation and demonstrated that he could not be counted on to avoid antisocial activity. The district court's revocation of Jones's probation was not an abuse of discretion. See Austin, 295 N.W.2d at 251-52 (upholding probation revocation when defendant had failed to take advantage of the opportunity for treatment or to show a commitment to rehabilitation).