A04-1015

State of Minnesota,

Respondent,

vs.

Jacki A. Roonzani,

Appellant.

Filed March 22, 2005

Affirmed

Toussaint, Chief Judge

St. Louis County District Court

File No. K0-03-300925

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 107D Courthouse, 1810 12th Avenue East, Hibbing, Minnesota 55746 (for respondent)

John M. Stuart, State Public Defender, Frank Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

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

TOUSSAINT, Chief Judge

Appellant challenges the district court’s judgment revoking probation and executing sentence, arguing that the record does not support the district court’s finding that (a) appellant violated a condition of probation, and (b) the need for appellant’s confinement outweighs the policies favoring probation. Appellant also argues that she is entitled to a new trial because her counsel was ineffective. Because the record supports the district court’s revocation of appellant’s probation and there was no ineffective assistance of counsel, we affirm.

FACTS

On July 25, 2003, appellant Jacki A. Roonzani drove her vehicle through a stop sign and hit the driver’s side of another vehicle. When the officer responding to the scene detected alcohol on appellant’s breath, appellant admitted to drinking and failed the field sobriety test. Appellant could not provide proof of insurance, and a check of her driving status showed that her driver’s license was cancelled as inimical to public safety. Appellant was placed in custody. A breath test revealed that appellant had an alcohol concentration of 0.13. Appellant was charged with two counts of felony driving while impaired (DWI) in the first degree pursuant to Minn. Stat. §169A.20, subds. 1(1), 1(5) (2002); one count of gross misdemeanor driving after cancellation pursuant to Minn. Stat. § 171.24, subd. 5 (2002); and misdemeanor driving without insurance pursuant to Minn. Stat. § 169.791, subd. 2 (2002).

Appellant pleaded guilty to one count of felony driving while impaired and one count of misdemeanor no proof of insurance on October 10, 2003. The presumptive sentence under the guidelines for the felony count was 42 months stayed. At the hearing, appellant admitted that she had four prior DWI’s between 1993 and 2003, and that she was on probation for her last DWI at the time of her arrest in the instant action. The district court ordered a pre-sentence investigation.

In the pre-sentence report, the probation officer recommended incarceration, concluding that appellant was a threat to public safety. According to the report, appellant has abused alcohol for approximately 20 years resulting in several debilitating health conditions. Appellant has had limited success in treatment programs. The current offense was appellant’s sixth DWI offense. The district court sentenced appellant on a separate first-degree DWI charge in April 2003. At that time, the probation officer questioned appellant’s amenability to probation, but the district court stayed the sentence to afford appellant the opportunity to take advantage of community services to address her mental, physical, and chemical dependency issues. Appellant was on probation for only three months when arrested in July 2003 for the current offense.

Appellant appeared for sentencing on January 9, 2004. Appellant’s counsel urged a probationary sentence, noting that she no longer owned a vehicle and was consistently adhering to a rigid treatment schedule while maintaining six months of sobriety. Because of appellant’s precarious health condition, appellant’s counsel suggested that she would not survive an executed prison sentence. The district court continued the sentencing and instructed the probation officer to develop alternative recommendations. The district court cautioned appellant stating, “any slight slip would be enough reason for the court to go ahead and execute the prison sentence.”

The district court adopted probation’s alternative recommendations and on February 7, 2004, sentenced appellant to 42 months stayed and five years’ probation. One condition of appellant’s probation was abstention from alcohol. The district court again cautioned appellant stating, “[I]f you are not able to do this program, then you’re going to go to prison. And if you die there, then everybody dies someplace.”

On February 27, 2004, appellant’s probation officer found her drinking in her home. Appellant’s blood alcohol level was tested at 0.19. A probation-revocation hearing was held March 1, 2004, at that time appellant waived her right to an attorney and admitted to violating her probation by consuming alcohol. The district court informed appellant that probation was recommending a prison term and postponed resentencing to give her the opportunity to contact counsel. A resentencing hearing was held on March 5, 2004, at which time appellant’s counsel stated that she did not wish to withdraw her previous admission and stated in appellant’s defense that he did not know the proper consequences for appellant’s conduct, but he questioned whether prison was the only answer. Appellant’s counsel did not offer any other mitigating evidence in appellant’s defense.

The district court revoked appellant’s probation and committed her to the department of corrections for 42 months. On appeal, appellant challenges the district court judgment revoking her probation and executing the 42-month sentence.

D E C I S I O N

The district court has broad discretion in deciding whether to revoke probation, and this court will reverse only if there has been a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). To justify a revocation of probation, the district court must find clear and convincing evidence that a defendant violated the conditions of his or her probation. Minn. R. Crim. P. 27.04, subd. 2(1)(b); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). The court must weigh the probationer's interest in freedom against the state's interest in public safety and insuring the probationer's rehabilitation. Austin, 295 N.W.2d at 250. Before probation can be revoked, the district court must (1) specify the condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id.

Appellant challenges the district court’s decision to revoke her probation on all three prongs. First, appellant argues that the district court made no finding of a probation violation because the district court merely accepted the admission of appellant’s counsel without questioning appellant. This argument is without merit. Appellant waived her right to counsel at her March 1 revocation hearing. Thereafter, appellant admitted to drinking in her home on February 27 and violating her probation. At a March 5 revocation hearing, the district court noted appellant’s prior admission to the violation and gave appellant’s counsel the opportunity to withdraw that admission. Appellant’s counsel stated that appellant would continue with her admission. Thus, the district court relied on clear and convincing evidence that appellant violated a condition of her probation.

Second, appellant argues that the district court erred by finding that appellant’s violation was intentional because appellant is incapable of controlling her alcohol abuse. We disagree. This court has determined that a probationer's alcohol addiction does not vitiate intent. See State v. Ehmke, 400 N.W.2d 839, 840–41 (Minn. App. 1987) (affirming a revocation order that was based in part on probationer's inability to control his addiction to alcohol). Accordingly, the district court did not abuse its discretion in finding that appellant intentionally violated her probation.

Finally, appellant challenges the district court’s finding that the need for her confinement outweighs the policies favoring probation. Based on the record evidence, appellant has (1) repeatedly failed to maintain sobriety despite participation in multiple treatment programs; (2) repeatedly driven while intoxicated; and (3) violated the conditions of her last three sentences for DWI convictions. Although appellant was found drinking in her home, appellant cannot demonstrate that she will not drive intoxicated in the future. Noting the futility of enforcing sobriety through the court system, the district court stated at appellant’s revocation hearing, “there comes a point in time where the court system can no longer keep focusing on trying to help a person get sober and has to reflect the will of the society that that person has to be locked up. I think that is where we are at now.” The district court properly balanced appellant’s interest in freedom against the state’s interest in public safety and did not abuse its discretion in determining that appellant posed a sufficient danger to the public to warrant execution of her sentence.

II.

Appellant next argues that she is entitled to a new probation revocation hearing because her counsel at the March 5 hearing was ineffective. A claim of ineffective assistance of counsel requires a defendant to show that (1) defense counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). There is a strong presumption that counsel’s performance fell within the wide range of reasonable assistance. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). Here, appellant contends that her counsel was ineffective because her counsel (1) failed to assert any mitigating statements; (2) failed to note the minor nature of her probation violation; and (3) failed to argue alternatives to the execution of her prison sentence.

Appellant’s ineffective assistance claim is unsupported. Whether the failure to offer mitigating statements constitutes ineffective assistance depends on the facts in the case and what arguments can credibly be made. Cf. Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004) (holding that defense counsel’s silence on a particular element of the crime did not constitute ineffective assistance); State v. Roberts, 279 Minn. 319, 323, 156 N.W.2d 760, 763 (1968) (holding that failure of defense counsel to interpose a particular defense is not ineffective assistance when, on the record, the defense has no merit). At appellant’s February 7 sentencing hearing, appellant’s counsel put forth the mitigating factors suggested by appellant and requested that the district court give appellant an additional chance at rehabilitation. Two weeks after receiving her probationary sentence, appellant violated one of her conditions by consuming alcohol. At appellant’s March 5 revocation hearing, appellant’s counsel acknowledged his client’s limitations with respect to alcohol and asked if execution of the sentence was the only alternative. Appellant’s counsel acted within the objective standard of reasonableness.

Affirmed.