may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy Paul Norton,
St. Louis County District Court
File No. K695600664
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.
This appeal is from a district court order revoking probation and executing a prison sentence. We affirm.
Two men came to appellant Timothy Paul Norton's apartment looking for a woman. After Norton informed them that there was no woman in his apartment, the two men hollered, banged on the apartment door, and threatened to come in through a window. Norton opened the apartment door, and he and another person pointed guns at the two men and threatened them. As a result of the incident, Norton was charged with two counts of second-degree assault, to which he pleaded guilty.
Pursuant to the plea agreement, the district court sentenced Norton to a stayed term of 54 months' imprisonment, a dispositional departure from the presumptive term, and placed him on probation for seven years. A probation condition was that Norton serve one year at the Northeast Regional Corrections Center (NERCC) under the sentence-to-serve program. Eight days after sentencing, a probation violation report was filed because Norton failed to sign the probation agreement and to appear for the sentence-to-serve program.
The district court conducted a revocation hearing. Norton admitted violating probation. The district court continued the stay of execution. Norton signed the probation agreement and entered NERCC.
Norton was released from the NERCC on August 10, 1996. On June 25, 1997, a probation violation report was filed because, during the previous four months, Norton failed to report in weekly to his probation officer as required by the probation agreement. Following 'a revocation hearing, at which Norton admitted violating probation, the district court continued the stay of execution.
In December 1997, a probation violation report was filed because Norton again failed to report to his probation officer as required by the probation agreement and because he had pleaded guilty to two new criminal offenses, misdemeanor theft and fleeing a police officer. The district court conducted a revocation hearing. Norton submitted a letter from a psychologist who had diagnosed Norton as suffering from major depression and alcohol dependence. The psychologist opined that it was highly probable that Norton's failure to report to his probation officer resulted from his depression and alcohol consumption. The psychologist recommended treatment at a long-term structured placement.
At the revocation hearing, Norton admitted he violated probation by failing to report to his probation officer and by committing two new criminal offenses. Norton argued that his failure to report resulted from his depression and alcohol dependence. He requested that the court continue the stay of execution and allow him the opportunity to obtain treatment for his depression and alcohol dependence.
The district court concluded:
It was my belief at the time you were sentenced on this, Mr. Norton, and you got a break on the front end, that things would work out. I had hoped that, and if I didn't honestly believe it, we wouldn't have done what we did at the front end. You have had a couple of slips in the meantime and you were given other chances. And at the time you were originally sentenced, you were - the possibility of treatment for you at NERCC, where you did the local time, was specifically mentioned and you were obligated to complete treatment. That was part of the original deal, so it isn't that the court feels you haven't had a chance, at least on the chemical dependency side, to have that issue addressed and I am confident they encouraged you to deal with what they felt was appropriate and needed to be dealt with at that time.
* * * I just think I really don't have any choice, based on the record here, except to do what I am doing. And I understand you have had some problems and I have reviewed -- *** I did carefully review [the psychologist's] letter to your attorney and I have thought about what that contains. But given all of the circumstances and the risks to society of your apparent inability or unwillingness to control your conduct, the sentence - the stay of sentence is vacated. The sentence will be executed.
The district court has discretion to revoke probation, and its decision will not be reversed absent an abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).
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.
Norton admitted and the district court found that Norton violated his probation by failing to report to his probation officer and by committing two new criminal offenses, misdemeanor theft and fleeing a police officer.
The district court did not expressly find that Norton's violations were intentional or inexcusable. But
when the trial court has failed to make the three Austin findings, the reviewing court may nevertheless affirm the trial court's revocation of a stayed sentence, provided that there is sufficient evidence in the record to support the necessary findings.
State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996).
Norton argues that his failure to report to his probation officer was unintentional because it resulted from his depression and alcohol dependence. But Norton also violated his probation by committing misdemeanor theft and fleeing a police officer. Theft, by definition, is an intentional offense. Minn. Stat. § 609.52 (1996). Also, Norton did not present any evidence excusing his conduct in fleeing a police officer. The evidence, thus, is sufficient to support a finding that Norton intentionally violated his probation.
Norton also argues that the district court failed to find that the need for confinement outweighed the policies favoring probation. But the district court found that
given all of the circumstances and the risks to society of your apparent inability or unwillingness to control your conduct, * * * the stay of sentence is vacated.
This finding is essentially equivalent to a finding that the need for confinement outweighs the policies favoring probation.
Norton argues that he should have been given the opportunity for treatment. But he had the opportunity for treatment while he was at NERCC and apparently failed to take advantage of it. The supreme court has upheld the revocation of probation when the defendant failed to take advantage of the opportunity for treatment or to show a commitment to rehabilitation. Austin, 295 N.W.2d at 251-52.
The probation violations that resulted in the revocation of Norton's probation were his third set of probation violations. Shortly after sentencing, he failed to sign the probation agreement and to report for the sentence to serve program. During a four-month period in 1997, he failed to report to his probation officer as required by the probation agreement. Continuing the stay of sentence would have depreciated the seriousness of repeatedly violating probation. 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.