This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1584

 

 

State of Minnesota,

Respondent,

 

vs.

 

Larry Lee Roloff,

Appellant.

 

 

Filed January 30, 2001

Affirmed

Randall, Judge

 

Crow Wing County District Court

File No. K2-96-1746

 

Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

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

 

John J. Sausen, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Randall, Judge, and Foley, Judge.^*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant Larry Lee Roloff received a stay of adjudication on a charge of criminal sexual conduct in the third degree and was placed on probation for three years.  After he violated the conditions of his probation on several occasions, he was adjudicated guilty, given a stay of imposition of sentence and placed on probation for 15 years.  Appellant again violated the conditions of his probation. The district court revoked his probation and executed the stayed sentence.  Appellant argues that the district court erred in revoking his probation.  Because the record supports the charge leading to the revocation and supports a finding of nonamenability to probation, the district court acted properly.  We affirm.

FACTS

            On June 16, 1997, appellant pleaded guilty to criminal sexual conduct in the third degree.  He received a stay of adjudication and was placed on probation for three years subject to the conditions that he: complete a sex-offender treatment program, not use drugs and commit no new crimes.

§        On October 27, 1997, appellant admitted the commission of new crimes, and his probation was continued.

§        On March 23, 1998, appellant admitted using drugs, and his probation was continued.

§        On April 26, 1999, appellant admitted using drugs.  He was adjudicated guilty, given a stay of imposition of his sentence, and his probation was continued for 15 years with the same conditions. 

§        On March 13-14, 2000, appellant admitted using drugs, was sentenced for the commission of a new crime, and his probation was continued.

§        On March 21, 2000, appellant failed a drug test.

§        On May 1, 2000, a probation violation report was filed recommending revoking probation because of the failed drug test and consequential failure to complete the sex offender program.  Appellant was dismissed from the sex-offender program for drug use.

 

            On June 26, 2000, the district court, finding appellant no longer amenable, revoked his probation and executed the 68-month sentence for criminal sexual conduct in the third degree.  Appellant contends that at the March 13, 2000, plea hearing he admitted using drugs up to and including that day.  Thus, he contends the positive drug test on March 21, 2000, showed drugs he had already admitted using, and, therefore, that positive drug test could not be used to revoke his probation in June because his probation had been continued on March 13. 

D E C I S I O N

The district court "has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  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.  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. citation omitted). 

Appellant admitted numerous probation violations, including the violations that led to the revocation, drug use, and failure to complete the treatment program.  His main contention is that his probation was technically revoked on June 12, 2000, for a positive drug test on March 21.  He argues that the March 21 positive drug test should not count against him because he had his probation continued on March 14, and that the positive drug test on March 21 simply revealed drugs that were in his system prior to March 13.  Thus, appellant argues that since his probation was continued on March 14, which included the drugs in his system on March 21, it is now unfair to revoke his probation for drugs in his system which he claims the court "passed on" when it looked at his drug use up to March 13 and continued his probation at a hearing on March 14.

At the June 12, 2000 hearing, appellant argued that if jail officials had given him weekly drug tests as provided for in the probation conditions, the tests would have shown that the level of drugs in his system was declining, thus supporting his claim that he had taken no drugs since March 13, 2000.

Although drugs may stay in a person's system for thirty days, that is not the issue.  The district court reviewed the March 13, 2000, transcript to determine if appellant had admitted to drug use up to that time.  We agree with the district court that the transcript reflects an admission to drug use for November 1999 only.  In November 1999, appellant failed a drug test thus violating his probation.  The plea hearing for that violation was March 13, 2000.  At that hearing, appellant admitted to using drugs in November 1999.  On March 14, despite appellant's history of probation violations, the court decided to continue his probation because his probation officer believed appellant was making progress.  When appellant failed a drug test just one week later on March 21, 2000, however, and was consequently dismissed from his treatment program, appellant's probation officer recommended revocation of his probation and incarceration.

The evidence in this record supports the district court's findings and the conclusion that appellant's probation should be revoked.  Appellant's repeated failure to follow the conditions of his probation demonstrated to the district court an unwillingness to consider the consequences of his actions.  We agree.  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 the conditions of the stay."  Minn. Sent. Guidelines III.B. 

We agree in general that the policy of probation is rehabilitation, and that is a good policy.  But that process cannot work if a defendant is not amenable to probation.  Unamenability is subjective, but with the history of appellant's repeated violations, and repeated inability to comply with second and third chances, the district court was easily within its discretion to conclude that another extension of probation was unwarranted.

Given the established record of repeated violations and the deference afforded the district court on revocation hearings, we conclude that the district court properly found appellant no longer amenable to probation when it ordered revocation.

            Affirmed.