This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-99-741

 

State of Minnesota,

Respondent,

vs.

Pedro Jumping Eagle,

Appellant.

 

Filed September 14, 1999

Affirmed

Lansing, Judge

Dissenting, Crippen, Judge

Ramsey County District Court

File No. K0-93-198

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Pedro Jumping Eagle appeals the revocation of probation and execution of his stayed sentence following a second probation violation. The district court did not abuse its discretion in executing the stayed sentence, and we affirm.

FACTS

In 1993, Pedro Jumping Eagle pleaded guilty to a charge of first-degree criminal sexual conduct for having sexual intercourse with a nine-year-old girl three separate times. The district court found that aggravating factors justified a double durational sentencing departure. But because the court believed Jumping Eagle was particularly amenable to sex-offender treatment, the court stayed the 172-month sentence and placed Jumping Eagle on probation for 30 years. The stay was conditioned on Jumping Eagleís successful completion of a treatment program at Alpha House. The court warned Jumping Eagle that failure to complete the program would result in revocation of probation and execution of the prison sentence.

In May 1998, Jumping Eagle appeared for a parole violation hearing. He admitted he had violated probation by missing therapy sessions, lying about his employment status, and failing to report to his probation officer. The court required Jumping Eagle to serve 60 days in the county jail but continued him on probation, admonishing him that he must complete treatment. Less than a year later, in February 1999, Jumping Eagle again appeared for a parole violation hearing. He admitted he had failed to cooperate with the treatment program, that he had been dishonest, and that he had been terminated from the treatment program. The court revoked his probation and executed the remaining time on his 172-month sentence. Jumping Eagle appeals, asserting the district courtís actions constitute a clear abuse of discretion.

D E C I S I O N

The district court has broad discretion in deciding whether to revoke probation and execute a sentence, and its decision will be reversed only if it is a clear abuse of discretion.[1] Before revoking probation, the court must apply the three-step analysis enunciated in State v. Austin. The court must "(1) designate the specific 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."[2]

The district court found that Jumping Eagle had committed a significant probation violation and that the violation was inexcusable. In evaluating whether the need for confinement outweighed the policies favoring probation, the court found "that public safety dictates that incarceration rather than continuance on probation is what needs to happen here." Jumping Eagle asserts that the courtís findings are insufficient to demonstrate that the need for confinement outweighed the policies favoring his continued probation.

We disagree with Jumping Eagleís argument because the court specifically found that public safety dictated incarceration, and that finding satisfies the third prong of the Austin analysis. But even if the court had not made a specific finding on that prong, reversal is not mandated unless the record contains insufficient evidence to warrant probation revocation.[3] In three separate ways, the evidence supports the district courtís discretionary action.

First, the record indisputably demonstrates that, over time, Jumping Eagleís unwillingness to comply with the Alpha House program grew more pronounced. A defendantís failure to respond to treatment or cooperate in a treatment program is sufficient evidence to support revocation of probation.[4] Revocation for failure to complete a treatment program accords with the rule that a defendantís failure to enter or be admitted to a treatment program is sufficient evidence to support revocation of probation.[5] Failure to successfully complete the treatment program was more than a technical violation; the treatment program was the heart of the conditions imposed in the district courtís initial stay of execution.

Second, the court already had continued Jumping Eagleís probation despite an earlier failure to comply with the program. A repeated probation violation based on failure to comply with a treatment program independently supports a revocation of probation.[6] This rule reflects the Minnesota Sentencing Guidelinesí policy on when probation should be revoked:

The [Sentencing Guideline] Commission would view commitment to the Commissioner of Corrections following revocation of a stayed sentence to be justified when:

1. The offender has been convicted of a new felony for which the guidelines would recommend imprisonment; or

2. Despite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay.[7]

The court imposed more onerous conditions on Jumping Eagle after his first probation violation, sentencing him to 60 days in the county jail. Despite these more onerous conditions, Jumping Eagle persisted in violating probation by not cooperating in the treatment program and being discharged from the program.

Third, the court warned Jumping Eagle at both his sentencing hearing and his first probation violation hearing that his failure to complete the program would result in

the revocation of his probation. Failure to follow probation conditions despite warnings of potential revocation is a further indication that the need for confinement outweighs policies favoring probation.[8]

Jumping Eagleís failure to comply with the requirements of the treatment program; his termination from the treatment program; his persistent probation violations despite more onerous conditions; and his disregard of the courtís warnings that failure to complete the program would result in probation revocation all support the courtís finding that the need for confinement outweighed the policies favoring probation. The district court did not abuse its discretion in revoking Jumping Eagleís probation and executing his stayed prison sentence.

Affirmed.

CRIPPEN, Judge (dissenting)

To fulfill the mandates of Austin, our critical duty is to scrutinize the trial courtís judgment that the "need for confinement outweighs the policies favoring probation." State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In this case, the trial court ordered execution of a long sentence, six years after it was imposed, after appellant was substantially rehabilitated, and due to technical probation violations that are unrelated to the risk of repeated criminal conductóeither conduct like his original crime or otherwise. The sentencing should be reversed in favor of a continued stay on conditions that include a substantial period of local confinement.

After his involvement in a treatment program for five years, those who worked with appellant judged that he has made "significant progress" and that he posed a "minimal" risk of reoffending. During these years, appellant committed no violations of law. Thus, the court employed only a 60-day workhouse sentence when appellant was cited in 1998 for technical violations, missing some therapy sessions and once failing to report to the treatment agency. In 1999, appellant was cited for further technical violations, now including his failure to tell staff that another participant in the treatment program was currently unemployed. In addition, appellant was cited for hiding information about nights he spent with his girlfriend and the nature of his current employmentónothing more.

The trial court determined that "public safety dictates" the choice to presently incarcerate appellant for 172 months. Otherwise, the court explained the "need for confinement" of appellant only by speculating that "rigorous honesty," free of "lying by omission," is "crucial" to keeping appellant from reoffending.

The trial court has not furnished the mandatory findings required by Austin on the need for confining appellant. Insofar as the courtís comments are deemed to constitute such a finding, they do not show this need. There is nothing in the record or in normal human experience that ties appellantís bouts with dishonesty, his technical violations of probation, with the risk that he will commit a crime, much less another sexual offense. There is no evidence in this case that public safety would be imperiled by the continued stay of appellantís sentence. Insofar as his honesty is to be demanded or appellantís respect for the law is to be enhanced, his problems can readily by addressed by more severe conditions of the stay.

Because unwarranted revocations unduly punish the offender and waste public resources, the rule of law is designed to avoid them. Confinement cannot occur in the absence of a proper finding of necessity. See Austin, 295 N.W.2d at 250. The supreme court has proscribed revocations except as "a last resort when treatment has failed." Id. Sentencing guidelines call for "great restraint" and denounce imprisonment following revocation when it is "undertaken lightly," specifically proscribing revocations that are a "reflexive reaction to technical violations." Minn. Sent. Guidelines III.B. Application of these laws cannot be confined to their recitation, and their integrity is at issue in the circumstances of this case.

There is abundant cause for reluctance in citing an error of the trial court in exercise of its sentencing discretion. See Austin, 295 N.W.2d at 249-50 (Minn. 1980) (declaring the broad discretion of the trial court in deciding whether to revoke a stay of sentence). This is especially so for a trial court that twice before has shown mercy to appellant in withholding execution of his sentence. Finally, this reluctance is enlarged for one who is writing separately, knowing that the cause for determination of error is normally gauged by the "collective, collegial experience" of the court in reviewing a large number of cases. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (quoting State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982)). Notwithstanding this reluctance, I respectfully dissent; justice under the rule of law requires a more restrained sentencing decision.

[1] State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

[2] Id. at 250.

[3] Id.

[4] See State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986) (affirming revocation when defendant was terminated from treatment program for failure to comply with the program's requirements), review denied (Minn. Feb. 13, 1987); State v. Marti, 372 N.W.2d 755, 758-59 (Minn. App. 1985) (same), review denied (Minn. Oct. 11, 1985); State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (same).

[5] State v. Muhlenhardt, 403 N.W.2d 638, 639 (Minn. 1987) (reinstating revocation when defendant failed to cooperate in treatment program admission); State v. Morrow, 492 N.W.2d 539, 544-45 (Minn. App. 1992) (affirming revocation of probation when defendant was unable to afford treatment program); State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992) (affirming revocation of probation when treatment became unavailable because county ceased contracting with treatment program); State v. Rock, 380 N.W.2d 211, 213 (Minn. App. 1986) (defendant's failure to be accepted by treatment programs supported revocation), review denied (Minn. Mar. 27, 1986).

[6] State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995); see State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989) (holding that single violation of probation sufficient to demonstrate "the rehabilitative purposes of probation had failed, and confinement was appropriate") (citation omitted).

[7] Minn. Sent. Guidelines III.B (1998) (emphasis added).

[8] Theel, 532 N.W.2d at 267.