This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1299

 

State of Minnesota,
Respondent,

vs.

Gunnar Allen Sturm,
Appellant.

 

 

Filed September 4, 2007

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

 

Dakota County District Court

File No. K7-03-2341

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

Deborah K. Ellis, 700 St. Paul Building, 6 West Fifth Street, St. Paul, MN  55102; and

 

Jennifer Macaulay, 649 Grand Avenue, Suite 2, St. Paul, MN  55105 (for appellant)

 

 

            Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

 

            In this appeal from an order revoking probation and executing a sentence imposed for two counts of felony harassment, appellant argues that the upward durational sentencing departure is not supported by aggravating circumstances; the district court abused its discretion in revoking his probation because his probation violations were caused by his mental illness; and the district court failed to consider a mental-health-treatment placement.  We affirm the revocation of probation, reverse the upward durational departure, and remand for imposition of the guidelines sentence.

FACTS

            On July 23, 2003, a complaint filed in district court charged appellant Gunnar Sturm with two counts of felony harassment in violation of Minn. Stat. § 609.749, subds. 2(a)(4), 4(b) (2002), and one count of engaging in a pattern of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (2002).  The charges stemmed from Sturm’s repeated attempts in 2002 and 2003 to contact his former girlfriend, R.A.K., by mail and telephone directly and through their children.  Sturm initiated these contacts from prison, where he was serving a sentence for felony domestic assault against R.A.K.  Sturm had also been convicted in 1997 of both misdemeanor and gross-misdemeanor domestic assault against R.A.K., and a September 3, 2002 order for protection prohibited Sturm from having any contact with R.A.K.  The state filed notice of its intent to seek an aggravated durational departure under Minn. Stat. § 609.1095, subd. 4 (2002), the career-offender statute. 

            On June 1, 2004, based on a plea agreement, Sturm pleaded guilty to the two counts of felony harassment, and the pattern-of-harassing-conduct charge was dismissed.  The district court imposed two consecutive 50-month sentences but stayed execution and placed Sturm on probation for ten years and ordered him to serve one year with credit for time served.  The second 50-month sentence was an upward durational departure from the presumptive 18-month guidelines sentence.

            In September 2005, the corrections department reported a probation violation based on Sturm’s failure to abstain from drug use and report for scheduled urinalysis.  On October 11, Sturm admitted the violation, and the district court ordered Sturm to serve 30 days on electronic home monitoring and continued his probation with the same terms and conditions.  The corrections department issued another probation-violation report in November 2005, and Sturm failed to appear for the scheduled violation hearing on December 5.  The district court learned that Sturm had checked into Fairview Riverside Hospital for a psychiatric evaluation, and on December 7, 2005, issued a warrant to secure Sturm’s appearance on the probation violation.

            On December 9, 2005, the county filed a petition to civilly commit Sturm as mentally ill and chemically dependent.  At a hearing on December 15, Sturm admitted the petition, and on December 16, the district court committed Sturm as mentally ill and chemically dependent.  Based on his civil commitment, Sturm moved to quash the warrant to secure his appearance on the probation violation.  The motion was denied, and a probation-revocation hearing was scheduled for March 10, 2006.  On March 9, Sturm filed a motion for an alternative sentence under Minn. Stat. § 609.1055 (2004).

            Following a hearing, the district court found that Sturm violated the terms of his probation by having contact with the victim, illegally using drugs, failing to stay in contact with his probation officer regarding a change of address, and failing to pay child support.  After determining that Sturm violated probation without justification or excuse and that the need for confinement outweighed the policies favoring probation, the district court revoked Sturm’s probation and executed the two 50-month sentences.  This appeal followed.

D E C I S I O N

 

I.

            Sturm argues that the district court failed to state a legal basis justifying an upward sentencing departure and, therefore, his sentence must be reduced to consecutive 50-month and 18-month terms under the sentencing guidelines.  We review a district court’s departure from the sentencing guidelines for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).   

            If the district court fails to state the reasons for departure on the record at the time of sentencing, no departure is allowed, and reversal and remand for imposition of the presumptive guidelines sentence are mandated.  Geller, 665 N.W.2d at 517.  “If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.”  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  “If the reasons given justify the departure, the departure will be allowed.”  Id.  “If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.”  Id.  But, “[i]f the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.”  Id.

            At Sturm’s sentencing in June 2004, the district court stated that the reason for the consecutive sentences was that Sturm “was subject to charges as a patterned or repeat offender with count three, pattern of harassing conduct, which could have landed [Sturm] behind bars for 120 months.”  A departure, however, must be based on the offense of conviction, not on an offense that was charged and dismissed.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  The district court also stated that the reason for the departure was “because the victim agrees, both parties agree and [Sturm] agrees, and to comply with the conditions of probation.”  But a plea agreement cannot by itself form the basis for a sentencing departure.  Id. at 72.  Rather, when reviewing a plea agreement, the district court must determine whether aggravating or mitigating circumstances warrant the proposed departure and articulate on the record the substantial and compelling circumstances that warrant the departure.  Id. at 71-72; see Minn. Sent. Guidelines II.D (providing departures must be supported by substantial and compelling circumstances); see also Minn. R. Crim. P. 27.03, subd. 4(C) (requiring district court to state on record reasons for departure).

            The state noted that aside from the plea agreement, the career-offender statute provided another basis for the upward durational departure.  But the career-offender statute provides: 

            [w]henever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

 

Minn. Stat. § 609.1095, subd. 4 (2002) (emphasis added).

            The district court did not impose an executed sentence; it stayed execution of the sentence.  Therefore, under its plain language, the career-offender statute does not apply to appellant’s sentence.  Furthermore, the district court did not specify on the record that Sturm has five or more prior felony convictions or that Sturm’s present offenses were committed as part of a pattern of criminal conduct.

            Because (1) the career-offender statute is inapplicable, (2) the district court failed to identify substantial and compelling circumstances that justify the upward departure, and (3) the state has not identified, and we have not found, sufficient evidence in the record to justify the departure, we reverse the departure and remand to the district court for imposition of the applicable guidelines sentence.

II.

            Sturm argues that the district court improperly revoked his probation and executed his sentence when the probation violation was a result of his mental illness.  The district court has broad discretion in determining whether sufficient evidence exists to revoke probation, and the decision to revoke probation will be reversed only if the district court clearly abused that discretion.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).  Before revoking probation, the district court must identify the condition violated, find that the violation was intentional or inexcusable, and find that the need for confinement outweighs the policies favoring probation.  Id. at 606. 

            Under the third factor, revocation is only appropriate if:

(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. 

 

State v. Austin, 295 N.W.2d 246, 251 (Minn. 1980) (quotation omitted); see also Modtland, 695 N.W.2d at 606-07 (explaining Austin).  “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.”  Austin, 295 N.W.2d at 250.  “There must be a balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.”  Id.  “The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”  Id. at 251 (quotations omitted).

            Sturm admitted to the probation violations of using drugs and contacting the victim, but he contends that the evidence presented at the hearing, which established that he suffers from mental illness and polysubstance abuse and would benefit from continued treatment, does not support the district court’s conclusion that the need for confinement outweighs the policies favoring probation.  But the record establishes that Sturm had already been kept on probation once after he admitted a probation violation, and Sturm’s probation officer recommended that Sturm’s sentence be executed because of the victim’s safety concerns.  R.A.K. testified that the continued contacts are very upsetting to her and her children, she does not feel safe going to pick up the children from school or daycare or when leaving work, she is “always looking to see if [Sturm] is around,” and Sturm did not regularly take his medication for his bipolar disorder. 

            Probation Officer David Mikle testified that when Sturm was released from a mental-illness and chemical-dependency treatment program at Burkwood, the discharge summary listed his prognosis as “guarded” because Sturm “failed to admit his addiction or powerlessness over drugs” and his “motivation for treatment was suspect.”  Mikle testified that his recommendation was to execute Sturm’s sentence based on the fact that Sturm “continued to contact the victim contrary to Court order” and that “[o]n the day that [Sturm] was discharged successfully from Burkwood he showed up at Regions Hospital and created a scene at Regions Hospital for the victim of the current offense.”  Mikle also testified that a urinalysis the next day “tested positive for cocaine off of the chart, one day after being released from a successful treatment completion.”  Mikle further testified that Sturm’s behavior can be controlled in a locked or in-patient facility, such as the Anoka-Metro Regional Treatment Center, but that he does not appear to have the ability to control his own behavior. 

            Dr. Kathryn Ripple, a psychologist at the Anoka-Metro Regional Treatment Center, testified that Sturm has made progress in treatment and is not aggressive and that with the right supports in place, he is ready for a provisional discharge.  But Ripple also testified that there is no guarantee that Sturm would not engage in the same types of behavior again, and she confirmed that she was not claiming that Sturm’s numerous voice and text messages and cocaine use occurred solely because he was mentally ill. 

            Regarding Sturm’s contacts with the victim, the district court noted Sturm’s “continuing harassing conduct with multiple e-mails, multiple voice mails, and multiple text messages, multiple phone calls in front of her house” and found that Sturm “is at high risk to re-offend” and that he “turned himself in to the hospital on December 4 to avoid showing up on December 5” for the scheduled probation violation hearing.  The district court found “that the need for confinement outweighs the policies favoring probation” and that balancing Sturm’s treatment needs and the public safety concerns, “the facts and the evidence compel, beyond a reasonable doubt, that the Court follow the recommendations of Probation and the state.” 

            Despite Ripple’s favorable testimony, in light of Sturm’s repeated harassing conduct and Mikle’s testimony regarding Sturm’s continuing drug use, the district court did not abuse its discretion in determining that the need for confinement outweighs the policies favoring probation.  The evidence supports a determination that Sturm’s confinement is necessary to protect R.A.K. and her children from further criminal activity and that Sturm is in need of correctional treatment that can most effectively be provided if he is confined.  Because the district court did not clearly abuse its discretion in determining that sufficient evidence exists to revoke Sturm’s probation, we affirm the revocation.

III.

            Sturm argues that the district court failed to give due consideration to Minn. Stat. § 609.1055 (2004) when it ordered that his sentence be executed.  Under that section, when a district court intends to commit an offender with mental illness to the custody of the commissioner of corrections for imprisonment,

the court, when consistent with public safety, may instead place the offender on probation or continue the offender’s probation and require as a condition of the probation that the offender successfully complete an appropriate supervised alternative living program having a mental health treatment component.

 

Minn. Stat. § 609.1055 (emphasis added).

 

            As the district court noted, it has authority under section 609.1055 to continue an offender’s probation when consistent with public safety, but it is not required to do so.  The district court’s determination that this alternative is not consistent with public safety is supported by both Ripple’s and Mikle’s testimony, which indicates that if Sturm is not confined, his criminal activity may continue.  Therefore, it was not an abuse of the district court’s discretion to not continue Sturm’s probation.   

            Affirmed in part, reversed in part, and remanded.