State of Minnesota, Respondent, vs. Dennis James Armstrong, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-1500

State of Minnesota,
Respondent,

vs.

Dennis James Armstrong,
Appellant.

 

Filed December 21, 1999
Affirmed
Shumaker, Judge

St. Louis County District Court
File No. K898600695

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, 100 N. 5th Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)

Steven P. Russett, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER,

Judge

Appellant Dennis James Armstrong challenges the district court's revocation of his probation and execution of his sentence for two counts of first-degree criminal sexual conduct, arguing that the court abused its discretion in refusing to give him a chance to participate in a revised treatment plan. We affirm.

 

FACTS

Appellant pleaded guilty to two counts of first-degree criminal sexual conduct. He entered a plea agreement under which the district court sentenced him to concurrent stayed prison terms of 86 and 100 months and placed him on probation for 15 years. The sentence was a dispositional downward departure from the sentencing guidelines, which presumed commitment to prison. The agreement and the sentence required appellant to serve one year at the Northeast Regional Correction Center (NERCC) in the sex offender treatment program. Additional probation conditions included no alcohol or drug use and compliance with all institution and program rules.

At NERCC, appellant violated probation by (1) being unaccountable to NERCC staff while on a scheduled medical appointment in the community; (2) having other NERCC patients buy him Sudafed; and (3) buying and ingesting Sudafed while outside the center for his scheduled medical appointment. Furthermore, appellant's probation officer stated that he had failed to progress in the sex offender treatment program beyond step one because of his obsession with obtaining drugs.

At a revocation hearing, appellant admitted violating various conditions of his probation. Appellant's caseworker at NERCC recommended a revised treatment plan. With reservations, his probation officer, the prosecutor, and defense counsel agreed. The district court found no justification for continuing appellant on probation because he had involved other people in his plans to obtain Sudafed, and he was not honest with NERCC staff. The district court revoked appellant's probation and executed his sentence.

 

D E C I S I O N

Once an offender has admitted to violating a condition of probation, the district court may either continue that person on probation or revoke probation and execute a previously imposed sentence. Minn. R. Crim. P. 27.04, subd. 3(3)(b). "The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of discretion." State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

Before revoking probation, the district court must (1) designate the specific 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. at 250. Appellant acknowledges that he violated conditions of his probation, but claims he did so because of his drug addiction and argues that the policies favoring revised probation outweigh the need for confinement.

Appellant first argues that with his history of mental illness and drug abuse, it was unrealistic to expect that he would be successfully treated in just four months. However, drug addiction does not vitiate intent or constitute a license to ignore the responsibilities of probation. See State v. Ehmke, 400 N.W.2d 839, 840-41 (Minn. App. 1987) (affirming a revocation order, in part, because the probationer continued to abuse alcohol). Appellant knew he had a drug problem and that NERCC had resources to help him, but he chose to solicit other NERCC residents to buy drugs for him, he lied to NERCC staff about what he was doing while on a scheduled medical appointment in the community, and he minimized his drug habit when he was evaluated for a chemical dependency assessment. Appellant's actions were intentional and inexcusable.

Appellant next argues that probation should only be revoked as a last resort, when all treatment has failed. 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. 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 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978)). A court should not revoke probation and order imprisonment of a defendant unless:

(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). However, nothing requires a district court to pursue every conceivable treatment alternative before ordering revocation. An offender must show his commitment to rehabilitation by substantial compliance with the obligations imposed by probation. The failure to follow the conditions of probation despite repeated warnings is an indication that probation has not succeeded. State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995). By using drugs, failing to comply with institution and program rules, and minimizing his behavior to the NERCC staff, appellant failed to comply with the conditions of his probation. The district court did not abuse its discretion in revoking appellant's probation and executing his sentence.

 Affirmed.