State of Minnesota, Respondent, vs. Robert Dewayne Cummings, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1708

State of Minnesota,

Respondent,

vs.

Robert Dewayne Cummings,

Appellant.

Filed March 18, 2003

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K30135

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN  55102-1657 (for respondent)

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

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Robert Cummings appeals from an order revoking his probation and executing his eighty-six month sentence for first-degree criminal sexual conduct.  The record supports the district court's findings that Cummings violated the conditions of his probation by testing positive for cocaine use and failing to complete a sexual-offender treatment program.  The district court did not abuse its discretion in executing the stayed sentence, and we affirm.

F A C T S

Robert Cummings pleaded guilty in 2001 to a charge of first-degree criminal sexual conduct for having sexual intercourse with a fourteen-year-old girl. Cummings was thirty-eight years old at the time of the offense.  The girl subsequently gave birth to a child, and DNA evidence confirmed that Cummings is the father.

The state and Cummings negotiated a plea that provided for a recommended dispositional departure from the presumptive eighty-six-month sentence.  Under the agreement, the sentence would be stayed on specific conditions that included a maximum of one year in the workhouse and sexual-offender treatment.

At the sentencing hearing, the state asked to withdraw from the agreement and requested an executed eighty-six month sentence because Cummings had tested positive for cocaine use while on release pending sentencing and had also failed to cooperate with the pre-sentencing investigation.  Because the plea agreement was not conditioned on either of these factors, the district court declined to allow the state to withdraw.

The court sentenced Cummings to eighty-six months in prison, stayed execution for thirty years, and imposed probationary conditions, which included serving one year in the workhouse, entering and completing a sexual-offender treatment program, ceasing all drug and alcohol use, and attending a twelve-step program.  The court warned Cummings that he must take responsibility for his crime and abide by the terms of his probation.  The court gave Cummings fifteen days to report to the workhouse and advised him that random drug testing would start immediately and that he would be drug-tested when he reported to the workhouse.

            Despite the warnings, Cummings tested positive for cocaine when he met with his probation officer the day before he entered the workhouse and on the day he entered the workhouse.  Cummings's probation officer did not receive the test results until Cummings was in custody at the workhouse and decided not to report the violation and instead to wait and see how Cummings progressed at the workhouse.  Cummings failed to complete the program and was discharged from it on May 31, 2002, because he was considered unamenable to treatment.  The state moved to revoke Cummings's probation, and the court conducted a probation-revocation hearing.

The evidence submitted at the hearing established that Cummings violated the terms of his probation by testing positive for cocaine before entering the workhouse and by being discharged from Project Pathfinder, a sexual-offender treatment program, because he was unamenable to treatment.  The court revoked Cummings's probation and executed the remaining time on his eighty-six month sentence.  Cummings appeals, asserting that the district court abused its discretion in executing the stayed sentence.

D E C I S I O N

The district court has broad discretion in determining whether to revoke probation and execute a sentence, and its decision will be reversed only if the court abused that discretion.  State v. Austin, 295 N.W.2d 246, 249-250 (Minn. 1980); see also Minn. R. Crim. P. 27.04, subd. 3(3)b (authorizing district court to continue probation or to revoke and order execution of a previously imposed sentence).  Before revoking probation, the court must apply the three-step analysis set forth in Austin.  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 the need for confinement outweighs the policies favoring probation."  Austin, 295 N.W.2d at 250.

The district court found that Cummings had committed the designated probation violations and found, inferentially, that the violations were both intentional and inexcusable.  In evaluating whether the need for confinement outweighed the policies favoring probation, the court found that Cummings was unwilling to take responsibility for his crime and that he did not take his probation seriously.  The court found that Cummings had demonstrated that he was unamenable to treatment and consequently revoked the stay.  Cummings asserts that the court abused its discretion in revoking his probation because he is willing to comply with the terms of his probation by entering another sexual-offender treatment program.

The evidence supporting the district court's determination of unamenability is strong.  The psychotherapist who conducted Cummings's treatment program testified that he analyzes three basic factors to determine a participant's amenability:  acknowledgement of the offense, acknowledgement that sexual offending is a problem that must stop, and a commitment to engage fully and participate in the program.  The psychotherapist found Cummings unamenable on all three grounds and listed the reasons for his findings.  The record contains multiple examples of Cummings's unwillingness to acknowledge his crime despite the conclusive DNA evidence and his guilty plea.  The record also provides clear evidence that Cummings failed to acknowledge or recognize the seriousness of his crime and that he failed to engage fully and participate in the treatment program.  Cummings was given an opportunity for rehabilitation through treatment, but he repeatedly failed to avail himself of that opportunity.

Cummings's failure to comply with the requirements of Project Pathfinder, his termination from Project Pathfinder, his failure to remain drug-free prior to sentencing and entering the workhouse, and his disregard for the court's warning that he must accept responsibility for his crime and abide by the terms of his probation all support the court's finding that the need for confinement outweighed the policies favoring probation.  The district court did not abuse its discretion in revoking Cummings's probation and executing his stayed prison sentence.

            Affirmed.