This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1840

 

State of Minnesota,

Respondent,

 

vs.

 

Wade Jay Reed,

Appellant.

 

Filed June 21, 2005

Reversed and remanded

Poritsky, Judge*

 

Otter Tail County District Court

File No. K0-03-498

 

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

 

David J. Hauser, Otter Tail County Attorney, Nicole S.C. Hansen, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

The district court revoked appellant Reed’s probation, based on Reed’s involuntary discharge from chemical-dependency treatment after he allegedly failed to maintain “appropriate boundaries” with a female resident.  Reed challenges the revocation, arguing that the district court abused its discretion because the revocation was based on a violation of a condition of probation that was imposed by the probation officer, rather than by the court.  Reed also argues that revocation was improper because the violation was unintentional and because the court made inadequate findings to address the Austinfactors, given defense counsel’s explicit argument that those factors were not met.  Because the condition violated by Reed was not a condition actually imposed by the district court, we reverse and remand.

FACTS

In June 2003, appellant Wade Jay Reed pleaded guilty to one count of first-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(5), .24, subd. 1(1) (2002).  The presumptive sentence under the Minnesota Sentencing Guidelines was a stayed sentence of 42 months. 

            On August 5, 2003, the district court imposed a stayed sentence of 42 months, ordered Reed to pay a $1,000 fine, imposed a conditional release term of five years, required him to serve 180 days in the Otter Tail county jail, and placed him on probation for up to seven years.  The district court also required that Reed “follow all of the recommendations that have been made for you as a result of the chemical dependency assessment” including completion of an inpatient treatment program.   

Pursuant to Reed’s chemical dependency assessment, Otter Tail county social services recommended that he completely abstain from “all mood-altering chemicals including alcohol,” complete “90 days in [a] halfway house, concurrent with outpatient chemical dependency treatment,” and undergo an evaluation at Lakeland Mental Health Center.  Reed entered Lake Region Halfway House upon completion of his 180-day incarceration. 

On January 22, 2004, a probation-violation report was issued after Reed tested positive for alcohol in a Breathalyzer test.  At a probation-violation hearing on January 23, he admitted to the violation.  In exchange, and based on an agreement of the parties, Reed was reinstated on probation and agreed to enter inpatient chemical dependency treatment.  The district court approved the agreement with the additional condition that Reed serve an additional ten days incarceration before entering treatment.  The district court impressed upon Reed that “further alcohol usage is not to be tolerated” and reinstated Reed on probation, stating:

All of the conditions previously set for you . . . remain in full force and effect except, as indicated, you will now serve an additional 10 days in jail; and you are specifically required to then go directly to an inpatient chemical dependency treatment facility that is approved by [the probation officer]. 

 

Whenever they after 10 days have a space available for you, you then are to continue in [chemical dependency] programming and to successfully complete it . . . . 

 

Reed was placed into inpatient chemical-dependency treatment at the Pine Manor treatment facility on January 28, 2004.  He successfully completed the program and was discharged on February 25.  He then once again entered the Lake Region Halfway House. 

On March 28, Reed returned to the halfway house at the 1:00 a.m. curfew, smelling of alcohol.  He was asked to give a breath sample, which resulted in a reading of 0.10.  On April 5, a second probation-violation report was issued.  According to the report, Reed contended that he had consumed several non-alcoholic beers and “swallowed Listerine and held Listerine in his mouth for several minutes prior to returning to the Halfway House in an attempt to cover the smell of the non-alcoholic beer.”  The director of the halfway house told the probation officer that “Listerine in the mouth could give that type of result.”  Reed’s counselor recommended that he be returned to Pine Manor for additional inpatient treatment.  His probation officer noted the “poor set of facts on which to violate [Reed],” and endorsed Reed’s return to inpatient treatment, recommending “[n]o action.”  Reed agreed to cooperate with the counselor’s recommendation.  The alleged violation was not heard by the district court. 

Reed re-entered the inpatient treatment program at Pine Manor on April 3, 2004.  While Reed was in the program, the staff became concerned about Reed’s conduct with a female resident.  As a result, Reed signed a “relationship contract” concerning his contact with the resident.  This contract required him to “[m]aintain appropriate boundaries with female peers[,] [p]ursue no selective peer relationships[,] and find [him]self in no situations where [he] [was] alone with or in any reportable situation.”  By signing the contract, Reed “agree[d] to comply with all requirements set forth in [the] contract with the understanding that if [he chose] not to comply with any requirements, [he was] choosing to be discharged from the program with no further chances being given.”  But on May 4, Reed was “unsatisfactorily discharged” from the program as a result of “a boundary issue with a female resident,” and on May 6, a probation violation was issued 

The violation came before the court on June 28.  Reed claimed that the basis of the violation was his playing a game of Ping Pong with the female resident.  He asserted that the violation was “a misunderstanding.  There was no harm intended.”  Reed further stated that he didn’t realize that he was “doing anything wrong” because “there [were] other people in the room” at the time. 

The district court subsequently revoked Reed’s probation and ordered that his 42-month sentence be executed.  In so doing, the district court noted that Reed had continued to have contact with the female resident after signing the contract and lied when first confronted with the violation.  Accordingly, the district court stated that it was “satisfied that [Reed had] chosen to go to prison.”  This appeal follows.

D E C I S I O N

Reed argues that the district court abused its discretion by revoking his probation based on his involuntary discharge from his second term of chemical-dependency treatment because such treatment was not a condition of probation set by the district court.  We will reverse the district court’s revocation of probation only if the district court clearly abused its discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

A district court “may place [a] defendant on probation . . . on the terms the court prescribes, including intermediate sanctions when practicable.”  Minn. Stat. 609.135, subd. 1(a)(2) (2002).  “[T]he term ‘intermediate sanctions’ includes . . . chemical dependency or mental health treatment or counseling[.]”  Minn. Stat. 609.135, subd. 1(b) (2002).  “[B]efore a probation violation can occur, the condition alleged to have been violated must have been a condition actually imposed by the court.”  State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004) (emphasis added).

There is a distinction between the imposition of a condition of probation and the implementation of the condition.  In discussing the imposition of sentences, the supreme court stated that “[d]etermining conditions of probation is exclusively a judicial function that cannot be delegated to executive agencies.”  State v. Henderson, 527 N.W.2d 827, 829 (Minn. 1995).  But the court also noted that flexibility in the implementation of conditions is desirable and stated that the district court “should not be burdened with administrative issues relating to the implementation of conditions of probation.”  Id. 

As a condition of Reed’s probation, the district court required that he “follow all of the recommendations . . . made for [him] as a result of [his] chemical dependency assessment,” including participation in an inpatient-treatment program.  It is uncontested that after Reed’s first probation violation, the district court ordered him to successfully complete inpatient chemical-dependency treatment and that he did successfully complete such treatment.[1]  It is also uncontested that Reed re-entered the inpatient chemical dependency treatment program for a second term based on the recommendation of his chemical-dependency counselor and probation officer, without a court hearing. 

Reed contends that because (1) he had successfully completed the inpatient treatment ordered by the district court, and (2) there was no court hearing or order specifically regarding his second term of inpatient treatment, this second term is “not a condition of probation as established by the [district] court.”  In opposition, the state points to the fact that when Reed received his initial sentence on August 5, 2003, the district court required Reed to follow all of the recommendations made for him as a result of his chemical-dependency evaluation.  Thus, the state urges, the probation officer’s recommendation that Reed enter into inpatient treatment a second time “is already a condition set forth by the court and does not need to be specifically ordered.” 

Because Reed successfully completed the first term of inpatient treatment as ordered by the district court, the issue becomes whether or not the second term of treatment was “actually imposed” by the district court.  Ornelas, 675 N.W.2d at 80.  Specifically, the issue is this:  When the chemical-dependency counselor and probation officer jointly recommended that Reed re-enter inpatient treatment, was the recommendation merely an implementation of a condition that the court had earlier imposed or was the recommendation an imposition of a new condition?

 Probation officers and chemical-dependency counselors, who are agents of executive agencies, may recommend probation conditions, but a violated condition that is used to support a probation revocation must be a condition imposed by the district court.  Id.  The supreme court has previously held that violation of a condition imposed by a probation officer, absent an order from the district court, is insufficient to support revocation.  See, e.g., id. at 80-81 (holding that a condition imposed by a probation officer that the probationer not have contact with individuals under 18 could not support a probation violation where the district court later ordered the condition on another sentence, but had not ordered it on the relevant sentence); State v. B.Y., 659 N.W.2d 763, 769 (Minn. 2003) (holding that a probation revocation could not be supported by a curfew requirement that was imposed by a juvenile’s probation officer but was not part of the district court’s disposition order).

Here, Reed’s first term of treatment was properly ordered by the district court.[2]  Reed successfully completed this treatment as required.  There is no subsequent order from the district court ordering Reed to complete a second term.  Chemical-dependency treatment is an intermediate sanction.  Minn. Stat. § 609.135, subd. 1(b) (2002) (stating that “the term ‘intermediate sanctions’ includes . . . chemical dependency or mental health treatment or counseling”).  Intermediate sanctions are conditions of probation that may be imposed only by the district court.  Henderson, 527 N.W.2d at 829 (holding that the imposition of intermediate sanctions exceeds the authority of the department of corrections).  Thus, the requirement that Reed follow the recommendations of his probation officer cannot support a condition that Reed successfully complete a second term of inpatient chemical-dependency treatment. Accordingly, Reed’s unsatisfactory discharge from his second term of inpatient chemical-dependency treatment cannot support the revocation of his probation. 

Because we conclude that the revocation of Reed’s probation was based on a condition not actually imposed by the court, we need not address the remaining issues he raises.

Reversed and remanded.