C5-00-192

State of Minnesota,

Respondent,

vs.

Clinston Albert Franklin,

Appellant.

Filed June 6, 2000

Affirmed

Kalitowski, Judge

Ramsey County District Court

File No. K3953698

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.^*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Clinston Albert Franklin challenges the district court’s revocation of his probation, arguing that the district court abused its discretion in denying his defense counsel’s request for a continuance. We affirm.

D E C I S I O N

The decision to grant or deny a continuance lies within the discretion of the district court. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984). On review, this court considers the circumstances before the district court when the motion was made and whether the defendant was so prejudiced in preparing or presenting a defense that it materially affected the outcome of the trial. State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 1979). A defendant must prove prejudice in order to justify reversal. In re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977).

In 1995, Franklin was charged with first-degree aggravated robbery and first-degree tampering with a witness. He pleaded guilty to first-degree aggravated robbery and the witness tampering charge was dismissed. Franklin was sentenced to 108 months, execution of which was stayed, and he was placed on probation for 20 years.

In 1999, Franklin violated his probation by failing to report for urinalysis as directed and by failing to abstain from using illegal drugs. Franklin admitted the violations and defense counsel requested a continuance to prepare for the disposition phase of the revocation hearing. Defense counsel indicated that he had only met Franklin about an hour prior to the hearing and that he could argue more effectively after a continuance because there “may be” some persons that would testify regarding the need or ability for Franklin to be rehabilitated in the community. The district court revoked Franklin’s probation without granting a continuance.

Franklin argues he was prejudiced because the district court “compromised” his right to counsel by denying his request for a continuance. When denial of a continuance deprives a defense counsel of adequate trial preparation, the defendant’s conviction must be reversed. T.D.F., 258 N.W.2d at 775. The right to counsel applies in probation revocation hearings if the probationer contests either the basis for or the appropriateness of revocation. State v. Murray, 529 N.W.2d 453, 455 (Minn. App. 1995).

Although it would have been preferable for the district court to allow defense counsel some additional time to prepare for the disposition phase of the hearing, on these facts we cannot say Franklin was prejudiced by the denial of the continuance. Franklin has not identified any specific evidence that would have been presented or witnesses who would have testified had the requested continuance been granted. Moreover, Franklin was not entirely deprived of the ability to present a defense. Defense counsel had Franklin’s mother and girlfriend testify on Franklin’s behalf and argued that Franklin’s violation could be addressed by placing him in the workhouse and admitting him to an inpatient treatment program. Franklin testified that (1) he wanted an opportunity to get inpatient treatment for his addictions to alcohol and drugs; (2) he did not feel prison would help; (3) he needed to help care for his four children and sick mother; and (4) he just needed a chance and would never violate probation again.

In addition, we conclude Franklin was not prejudiced by the denial of the request for a continuance because even with more evidence regarding Franklin’s amenability to rehabilitation in the community, probation revocation was nearly certain in this case. A district court has broad discretion in probation revocation matters and will be reversed only if there is a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Here, the district court was presented with overwhelming evidence that revocation was appropriate. Franklin admittedly violated his probation in 1997. At that time, the court noted that Franklin was on probation for three different matters and that alcohol use violated the probations. But the district court continued probation on all three matters, warning Franklin that, if he continued to violate probation, “the prospects of being committed are very strong.” Franklin nevertheless admitted that he again violated his probation in 1999 by failing to report for urinalysis and by using cocaine.

The evidence supports the determination that Franklin was in need of correctional treatment that could be provided most effectively if he was confined. Franklin agreed that he needed drug and alcohol treatment. The representative from the probation department: (1) recommended that Franklin be confined in light of his prior criminal history; (2) stated that any mental health issues should be addressed while Franklin was confined; and (3) pointed out that Franklin had failed to complete treatment before because he had “walked” from voluntary programs. We conclude the record indicates Franklin’s probation was appropriately revoked. See Austin, 295 N.W.2d at 251 (indicating that district court should consider whether confinement is necessary to protect the public, the seriousness of the probation violation, and whether the offender is in need of treatment that can be provided most effectively in confinement).

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.