Thomas J. Harbinson, Scott County Attorney, Susan K. Mc Nellis, Brent S. Schafer, Assistant County Attorneys, 428 South Holmes Street, Shakopee, MN 55379 (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 Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

Appellant Peter Green challenges the district court's revocation of his probation.

While Green was serving his jail term, he had a mental breakdown and was transferred to Willmar State Hospital. From Willmar, Green was sent to Arrowhead House, a halfway house for the mentally ill, where he began the Spectra sexual offender treatment program. Before completing the Spectra program, Green was discharged from Arrowhead for reasons that included inappropriate sexual behavior.

Because Green failed to finish a sexual offender treatment program, a probation violation hearing was held on May 17, 1996. Green admitted the violation, and the court ordered him to Riverview House to obtain sexual offender treatment, after which he was to report back to the court for disposition of the probation violation. Green was discharged from Riverview for behavioral problems before he was able to begin a sexual offender treatment program. The district court found that Green had failed to complete a sexual offender treatment program and that he was a threat to society and executed his sentence.

The need for confinement outweighs the policies favoring probation when

(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.

Id. at 251 (citation omitted).

Green argues that because terminations from Riverview and Arrowhead were partially due to his mental illness, he cannot be said to have failed intentionally to complete treatment. The mental health professional at Riverview testified, however, that Green's mental illness was in remission while he was taking his medication and that Riverview staff are capable of dealing with mentally ill patients who are willing to work on their behavior. Moreover, Minnesota courts have affirmed probation revocations where offenders were unable to obtain appropriate treatment even when they were not at fault for failing to complete treatment. See State v. Morrow, 492 N.W.2d 539, 544 (Minn. App. 1992) (affirming revocation where offender failed to complete treatment because he could not afford it); State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992) (affirming revocation where offender did not complete treatment because program was unavailable).

This court has affirmed a probation revocation where the offender was terminated by one sexual offender treatment program for being unresponsive and obstructionist and was found by a second program to be unamenable to treatment. State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985). The staff at Arrowhead found Green unresponsive to treatment and said he did not take his medication, drank alcohol, engaged in inappropriate sexual behavior, and did not cooperate with attempts to improve his behavior. The mental health professional at Riverview testified that Green was not amenable to treatment, that his presence at Riverview put other residents at risk, and that he would put the public at risk if he were not in a locked facility. One of Green's probation officers reported that he was unamenable to probation and concluded that he was a threat to the community and needed to be placed in a locked facility.

The evidence supports the district court's findings that Green intentionally violated a condition of his probation and that his confinement was necessary to protect the public. The district court therefore did not abuse its discretion by revoking Green's probation. Affirmed.