This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1963

State of Minnesota,

Respondent,

vs.

Rundel Astaire Fletcher,

Appellant.

Filed February 25, 1997

Affirmed

Mansur, Judge

[*]

Hennepin County District Court

File No. 95090708

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN, 55414 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Willis, Judge and Mansur, Judge.

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

MANSUR, Judge

Rundel Astaire Fletcher appeals an order of the district court revoking his probation on the basis of new criminal charges pending against him. We affirm.

FACTS

Appellant Rundel Fletcher was charged with burglary in the first degree, assault in the second degree, and terroristic threats following an incident in October 1995, at the apartment of R.A., his former girlfriend. Fletcher pleaded guilty to first degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (1994). The district court ordered a stay of imposition with probation for five years. As a condition of the stay, Fletcher was ordered to serve 270 days in the county workhouse.

Shortly after beginning his sentence in the workhouse in April 1996, Fletcher allegedly asked another inmate to help arrange to have R.A. beaten and shot. The inmate alerted R.A., who contacted a Hennepin County probation officer. A detective arranged for an undercover officer to go to the workhouse and represent himself to Fletcher as a gang member who could assault R.A. The conversation between Fletcher and the undercover officer was tape recorded and transcribed.

On April 17, 1996, the district court issued an order for Fletcher's arrest, although he was still in custody in the workhouse. This order was based on Fletcher's refusal to cooperate in returning R.A.'s property, one of the terms of his probation, and because he refused to sign the probation order presented to him.

Fletcher was charged with first-degree conspiracy to commit murder and first-degree conspiracy to commit assault on April 22, 1996, and an amended order for arrest, citing the pending charges, was issued on April 24. Fletcher remained in the workhouse until the probation revocation hearing was held on June 26, 1996.

Three people testified at the revocation hearing: Fletcher's probation officer, detective John Reed, and the undercover officer. Fletcher was offered limited use immunity, but declined to testify. The district court revoked Fletcher's probation, citing Fletcher's contact with R.A.,[1] his refusal to cooperate in returning R.A.'s property, and the new charges. Fletcher was sentenced to 48 months in prison. This appeal followed.

D E C I S I O N

I.

If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed. Minn. Stat. § 609.14, subd. 3, cl. 2 (1996). The district court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

Before the district court revokes probation, the court must: (1) designate the specific 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; see also State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996) (stating that the district court must either make findings under Austin, or the record must contain sufficient evidence to support the necessary findings). Our review of the probation revocation hearing testimony indicates that the district court appropriately considered and made findings on the record on each of the Austin factors.

II.

Fletcher further argues that it was unfair to proceed with the revocation hearing before the pending charges were resolved. Minn. R. Crim. P. 27.04, subd. 2(4), states:

If the probationer has allegedly violated a condition of probation by commission of a crime, the court may postpone the revocation hearing pending disposition of the criminal case whether or not the probationer is in custody.

The choice of the word "may" rather than "shall" in the rule indicates that the drafters intended to leave the district court with discretion to decide when revocation hearings would be held. State v. Phabsomphou, 530 N.W.2d 876, 878 (Minn. App. 1995), review denied (Minn. June 29, 1995). Use of pending charges as the basis for probation revocation may raise due process concerns, but a probationer's constitutional rights are adequately protected if the district court offers the probationer limited use immunity at the revocation hearing. Id. at 879. Fletcher was offered such immunity, but declined to testify.

When the new charges form the sole basis of possible revocation, "strong policy considerations favor delaying the revocation hearing until after resolution of those new charges." Id. But even when new charges are the sole basis for revocation, the rule does not prohibit the district court from holding the hearing prior to the resolution of the charges. Id. Here, the district court cited the need to protect the public and R.A. from further criminal activity, and we agree that the serious nature of the state's charges against Fletcher coupled with his history of violence towards R.A. provide compelling reasons to not delay the hearing. The district court properly exercised its discretion in this matter.

III.

Fletcher argues, pro se, that his sentence was unfair. His claim is without merit. Forty-eight months is the presumptive sentence for this severity level seven offense, and only rarely will a reviewing court reverse a district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). If "substantial and compelling" circumstances are present in a particular case, the court may order a downward departure. Id. No such circumstances are present in this case.

Fletcher further argues that he was prejudiced by his choice to remain silent at the revocation hearing, but the transcript indicates that Fletcher was offered limited use immunity if he testified. The limited use immunity offered Fletcher adequately protected his due process and jury trial rights. See Phabsomphou, 530 N.W.2d at 879.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 As a term of his probation, Fletcher was ordered to have no contact with R.A. The district court's perception was that this condition was violated when Fletcher arranged to have R.A. assaulted, thereby attempting to "contact" her.