STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Tahsha Patrice Jackson,
Filed August 3, 1999
Ramsey County District Court
File No. K9963277
Michael Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
This appeal is from an order revoking appellant Tahsha Patrice Jackson's probation. We affirm.
In July 1997, Jackson's probation officer, Bruce Kimlinger, filed a probation violation notice alleging that Jackson had violated her probation by (1) failing to appear for office visits and drug tests on several occasions; (2) testing positive for cocaine on June 20, 1997; and (3) failing to enter a chemical dependency treatment program. At the probation violation hearing, Jackson admitted violating the conditions of her probation. The court ordered her to serve 60 days in a women's correctional facility and continued her probation.
In May 1998, Kimlinger filed a second probation violation notice, alleging that Jackson violated her probation by testing positive for cocaine on two occasions. At the probation violation hearing, Jackson again admitted violating her probation, and the court sentenced her to serve another 60 days in a women's correctional facility and continued her probation.
In September 1998, Kimlinger filed a third probation violation notice, alleging that Jackson violated her probation by (1) using cocaine; (2) failing to report for office visits and drug tests on August 21 and September 21; and (3) refusing to submit to drug testing on September 22, 1998. At the probation violation hearing, Kimlinger testified that Jackson repeatedly violated her probation by using cocaine and failed to take advantage of several cocaine treatment programs that were made available to her.
The court concluded that Jackson had violated her probation. The court found that Jackson was noncompliant with probation efforts, resisted therapeutic efforts, and was unamenable to community supervision. The court also found that Jackson's probation violations were "without reasonable excuse or justification" and "the reasons that generally prefer probation to incarceration don't exist here any more, and that there is little that can happen for [Jackson] on probation." The court revoked Jackson's probation, vacated the stay, and ordered execution of her 42-month sentence.
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.
The supreme court has cautioned that probation revocation should not "be a reflexive reaction to an accumulation of technical violations." Id. at 251. The district court must balance "the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety." Id. at 250. Under the sentencing guidelines, revocation of a stayed prison sentence 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." Minn. Sent. Guidelines III.B.2.
Jackson argues that the district court abused its discretion by revoking her probation and executing her sentence. She contends that even if she violated technical conditions of her probation, public policy favored continued probation. Jackson characterizes her missed appointments with her probation officer as technical violations because, although she missed appointments, she continued to report daily by telephone. Jackson contends that this demonstrates that she was not trying to avoid supervision.
But Jackson's probation was not revoked simply because she failed to keep appointments with her probation officer. Kimlinger testified that Jackson failed to meet with him for office visits and urinalysis on August 21, 1998, and September 21, 1998, and refused to take a drug test during an unscheduled visit on September 22, 1998. Kimlinger also testified that during the unscheduled visit on September 22, Jackson admitted that she had used cocaine and "had real dark lines under her eyes" and "was very agitated," which lead him to believe that she was using cocaine. Jackson disputed Kimlinger's testimony, but the district court found Kimlinger credible and concluded that the probation violations were proven by clear and convincing evidence. See Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986) (this court defers to the district court's assessment of witness credibility), review denied (Minn. Nov. 26, 1986).
There is also sufficient evidence to support the district court's finding that Jackson's probation violations were without reasonable excuse or justification. Jackson admitted to Kimlinger that she had used cocaine. Jackson was twice cited for violating her probation by testing positive for cocaine use. And although Jackson claims she did not intentionally miss her meetings and drug tests scheduled for August 21 and September 4, she refused Kimlinger's request to take a drug test when she met with him on September 22.
Revocation of a stayed prison sentence 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." Minn. Sent. Guidelines III.B.2. Jackson repeatedly violated the conditions of her probation by missing appointments with her probation officer and testing positive for cocaine use. On two occasions, the district court found that Jackson violated her probation and sentenced her to 60-day jail terms and continued probation. Despite these more onerous conditions of her stayed sentence, Jackson continued to use cocaine.
The district court did not abuse its discretion by revoking Jackson's probation.