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,
Alonzo Brutley Jones,
Filed July 1, 1997
Stearns County District Court
File No. K8952426
Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Roger S. Van Heel, Stearns County Attorney, William S. MacPhail, Assistant Stearns County Attorney, 705 Courthouse Square, Administration Center, RM 448, St. Cloud, MN 56303 (for Respondent)
John M. Stuart, State Public Defender, Patricia Rettler, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.
Appellant Alonzo Jones asserts that the trial court abused its discretion by revoking his probation after he failed a drug test. We affirm.
After appellant tested positive for cocaine, the trial court held a probation revocation hearing in November 1996. Finding that the drug test was clear and convincing evidence that appellant had violated a probation condition, the court revoked the stay of execution and ordered appellant to serve the remainder of his sentence.
The trial court's extensive findings include the statement that appellant's violation of a probation condition was proven by clear and convincing evidence. Appellant did not contend that his violation was unintentional or excusable. He had used cocaine when he committed the 1995 offense, and the court repeatedly told him at the sentencing hearing that he would have to abstain from the use of all mood-altering chemicals and submit to random testing. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (concluding that defendant's testimony suggesting that he knew that he was "beyond the limitations" of his probation sufficiently indicated that defendant intentionally violated probation condition), review denied (Minn. July 20, 1995).
Appellant contends that the minor nature of his violation makes the policies favoring an altered probation arrangement outweigh the need for confinement. A court should not revoke probation and order imprisonment of a defendant unless:
(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
Austin, 295 N.W.2d at 251 (citation omitted).
Although appellant's violation, by itself, was relatively minor, the record provides sufficient evidence to revoke appellant's probation because his serious chemical abuse problem demonstrates a threat to the community and can most effectively be addressed if he is confined. The pre-sentence investigation report stated that if appellant is to have "any chance at success while on probation, he is going to have to completely abstain from the use of all mood-altering chemicals." Appellant also admitted during his guilty plea that the offense occurred "because of the drugs." In addition to his substance abuse, appellant has a long history of criminal activity.
The record demonstrates that during the revocation hearing, the trial court expressly rejected appellant's request to impose treatment instead of imprisonment due to appellant's continuing problems with mood-altering chemicals. The trial court stated:
There are treatment programs available in custody. I hope you take advantage of them. I don't feel like I have any choice. I let you off the first time because I thought you'd take advantage of them. You didn't. I can't just wink and say go on your way.
See State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986) (upholding revocation where trial court "made it clear" that dispositional departure "was solely to permit one last attempt to succeed at treatment," and offender "understood that and refused to comply"), review denied (Minn. Feb. 13, 1987).
In addition, appellant's lack of effort to comply with the other conditions of his probation supports the revocation of the stayed sentence. At the revocation hearing, appellant's probation agent testified (a) that appellant had only minimal contact with his probation agent after his release from custody, (b) that appellant failed to make his scheduled appointments, (c) that appellant unsuccessfully had attempted to transfer probation to Olmstead County, and (d) that he concluded appellant was not amenable to probation supervision. Although the trial court found that these shortcomings did not support revoking appellant's probation by themselves, they do indicate that appellant's probation was less than successful. See Theel, 532 N.W.2d at 267 (concluding that sufficient evidence existed to indicate that the need for confinement outweighed policies favoring probation where record revealed that defendant's "probation was not succeeding" because he failed to pay restitution despite the trial court's warnings). Thus, sufficient evidence exists to conclude that the need for confinement outweighed appellant's interest in freedom. The court's revocation was within the limits of its broad discretion.