Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
Carl Vernon Stavig, Sr.,
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Alan Mitchell, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Dwayne Bryan, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court's decision to revoke his probation. Because we see no abuse of discretion, we affirm.
In September 1995, appellant Carl Vernon Stavig was convicted of attempted second-degree criminal sexual conduct and sentenced to one year in prison. The sentence was stayed and appellant was placed on probation for ten years. In October 1995, he violated his probation by engaging in sexual intercourse with his daughter. He pleaded guilty to first-degree criminal sexual conduct and was sentenced to 110 months in prison. In a downward dispositional departure, the court stayed the sentence and placed appellant on probation for ten years with the requirement that he complete the sex offender treatment program at the Northeast Regional Corrections Center (NERCC) within one year.
In March 1997, a probation violation report was filed alleging that appellant refused to participate as expected in the treatment program, refused to follow directives from treatment staff, and failed to follow through on written commitments. After a hearing, the district court found the allegations to be true and revoked appellant's probation. The court found that appellant possessed "a personality defect and emotional traits which render it difficult for him to participate in the treatment process * * *." After a dispositional hearing, the district court concluded that further treatment was inappropriate and executed appellant's original 110-month sentence.
D E C I S I O N
"The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion." State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Courts should conduct a three-step analysis before deciding to revoke probation: (1) identify the specific condition of probation that was violated; (2) find that the probation violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. Appellant challenges the findings that his failure to complete the sex offender treatment program was inexcusable and that public policy favored incarceration.
1. Inexcusable or intentional violation
The district court found that appellant suffered from a personality disorder, flawed problem-solving skills, inept coping skills, and a restricted learning style that prevented him from receiving the maximum benefit from the program. The court revoked his probation because he refused to participate in treatment, refused to follow the directives of the treatment staff, and failed to follow through on written commitments. On appeal, appellant asserts that irritability brought on by medication, difficulty with his handwriting, and bias on the part of the NERCC staff caused his problems.
Regarding the alleged bias, the record reflects a disturbing confrontation between appellant, his attorney, and the treatment staff from NERCC. During that incident, appellant was required to get a court order to compel the NERCC staff to allow him to attend a CHIPS hearing involving his daughter. Once at the hearing, appellant moved to have the court bar his treatment counselor and probation officer from attending the hearing. The motion was granted. While we agree that this incident may indicate some bias by the treatment staff against appellant, the record clearly supports the district court's determination that appellant suffers from a personality disorder and possesses certain personality traits that prevent him from completing the program and led to his probation violation.
Mike Skorude, a psychologist at NERCC, testified that appellant's personality configuration produced guilt, shame, paranoia, obsessive/compulsiveness, and instability. He stated that appellant's psychological difficulties are consistent with a high level of dangerousness and a high risk of reoffending. He also testified that appellant was hostile and belligerent, that his attitude had a detrimental effect on other men in group therapy, and that he did not think that appellant was amenable to treatment at NERCC. Bruce Michon, a corrections agent at NERCC, testified that on two occasions appellant had to be transferred to the local jail; once for acts of defiance and once for taking a large dose of medication. Michon also testified that appellant chose to participate only in certain aspects of the program and that he would become angry and stubborn when confronted about his behavior.
The court concluded that appellant's failures in treatment, while excusable because of personality defects beyond his control, were not excusable from society's point of view because of the risk that he would reoffend. While it may be true that appellant was irritable because of medication and that he had difficulty with his handwriting, we cannot ignore the critical fact that appellant did not complete the treatment program as required by his probation. As the district court concluded, respondent State of Minnesota has "no obligation to apply treatment assets against a problem that cannot be solved regardless of whether the lack of progress may be ascribed to an unwillingness or an inability * * *."
Sufficient evidence exists to uphold the district court's finding that appellant's failure to complete the NERCC treatment program was inexcusable.
2. Need for confinement
In deciding between probation and imprisonment, courts should balance the probationer's interest in freedom with the state's interest in ensuring his rehabilitation and public safety. Austin, 295 N.W.2d at 250. In addition,
[R]evocation followed by imprisonment should not be the disposition * * * unless the court finds on the basis of the original offense and the intervening conduct of the offender that:
(i) confinement is necessary to protect the public from further criminal activity by the offender * * *.
Id. at 251.
In this case, the psychologist testified that appellant's characteristics indicate he is highly likely to reoffend. The court held that appellant "in his present state, presents a significant risk to the community and presents a significant risk of reoffending." This finding is supported by the fact that appellant, one month after being placed on probation, and in the untreated state that he remains in today, engaged in sexual intercourse with his daughter. The district court's determination that appellant is a risk to the community unless incarcerated is not a clear abuse of discretion. See generally id. at 249-50 (reviewing district court's three-step analysis under clear abuse of discretion standard); cf. State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding that revocation may be affirmed if there is sufficient evidence in the record to support the district court's findings), review denied (Minn. July 20, 1995).
The district court did not abuse its discretion in revoking appellant's probation and executing his 110-month sentence.
 Appellant does not challenge the finding that he violated his probation by failing to complete the NERCC treatment program within a year.