State of Minnesota, Respondent, vs. Shawn Matthew Clepper, 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This opinion will be unpublished and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

C4-02-2195

 

 

State of Minnesota,

Respondent,

 

vs.

 

Shawn Matthew Clepper,

Appellant.

 

 

Filed May 13, 2003

Affirmed
Forsberg, Judge*

 

Ramsey County District Court

File No. K301908

 

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

 

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

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant challenges the order revoking his probation and denying his motion to withdraw his guilty plea to first-degree criminal sexual conduct, arguing that (1) revoking probation for his failure to secure funding for residential sex-offender treatment violates equal protection and the violation was unintentional; and (2) his guilty plea was not intelligently made because he did not understand that a failure to secure funding would result in revocation of his probation.  We affirm.

FACTS

            Appellant Shawn Matthew Clepper was placed on probation following a guilty plea to two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(g), 2 (2000).  According to the terms of the plea agreement, the concurrent 144-month sentences were stayed on the condition that appellant serve 18 months in the workhouse and pay for his own treatment at Alpha Human Services.

            The charges were filed because during weekend visitation with his two children, appellant touched five-year-old K.C. on her vaginal area with his hand, digitally penetrated her body, and also digitally penetrated the buttocks of J.C., his four-year-old son.  Appellant denied the conduct, but stated he understood that if K.C. were to testify, she would say that he had put his fingers and penis in her vagina.

            Appellant pleaded guilty as charged before the district court with the understanding that he would receive a stayed sentence conditioned upon completion of a residential sex-offender treatment program at his own expense.  The court discussed the funding of the treatment with appellant's counsel and granted several continuances to allow him additional time to obtain private funding.  The court stated that it was made clear to appellant's counsel that no public funds were available to pay for appellant's inpatient treatment.

            A Ramsey County probation officer prepared a presentence investigation (PSI) report indicating that appellant was not forthcoming about the details of his offense.  The PSI ultimately recommended that the plea agreement be followed, provided that appellant pay for his own treatment at Alpha House.  If appellant was unable to pay for his own treatment, the PSI recommended an executed sentence.

            On October 16, 2001, appellant was sentenced to 144 months, stayed upon conditions of probation, including entering and completing a residential sex-offender treatment program through Alpha Human Services at his own expense.  At this hearing, the prosecutor specifically asked the court to repeat that "a failure to either start or resume counseling at Alpha House based on a failure to pay * * * will be a violation of his condition of probation."  The court so stated, and appellant acknowledged that this was understood at the time of the guilty plea. 

            On February 6, 2002, a probation violation was initiated because appellant failed to secure the funds necessary to begin treatment at Alpha House.  An evidentiary hearing was held regarding the probation violation, and appellant also filed a motion to withdraw his guilty plea.  The court found that appellant was in violation of the conditions of his probation because he failed to secure funding for treatment at Alpha House, and the court executed the stayed 144-month sentence.  The court also refused to allow appellant to withdraw his guilty plea. 

            At the probation violation hearing, Douglas Williams, the director of intake and outpatient services at Alpha Human Services, testified that treatment at their inpatient facility is $2,100 per month.  Therefore, 13 months of treatment, which is the minimum length, is $27,300, and 15 months of treatment, which is the average length, is $31,500.  William Donnay from the Minnesota Department of Corrections (DOC) testified that the DOC does not fund any inpatient residential sex-offender treatment programs due to the limited availability of funds.

            Moreover, John Menke, a supervisor with Ramsey County Community Corrections, testified that it is "rare" for his department to pay for treatment when the individual's stayed sentence is a prison commitment.  Menke's department receives $95,000 per year from general property levies to fund treatment for three patients and half of the costs for another per year in inpatient treatment at Alpha House.  The fund is replenished on a calendar year basis.  Menke testified that the entire fund for 2002 had been spent and most of the funds for 2003 had already been encumbered.

            Menke testified that since January 2001, 40 people were convicted of first-degree criminal sexual conduct, but the county is only paying for treatment for two of them and half of the costs for another.  And generally, funding depends on two factors:  amenability to treatment and availability of funds.  But the county also considers several other factors, including: (1) whether the individual can be supervised safely in the community; (2) whether the individual requires a retention component; (3) whether Alpha House can provide enough security and safety; (4) the defendant's ability to perform; and (5) whether there is a legitimate reason to suggest a departure from the guidelines if the defendant is a prison commitment.

            Menke also testified that his department makes it clear to the court and the defendant during sentencing what portion they can subsidize and what they cannot, and that this was done in appellant's case.  Menke reviewed appellant's case prior to sentencing and again after sentencing when the funding issues came to light.  Menke denied funding after concluding that appellant was at a higher risk to reoffend than other potential treatment candidates.  His conclusion was based on the very young ages of the victims, the incestuous nature of the sexual conduct, and the "deviations and urges" to sexually abuse children that appellant disclosed during his sex-offender assessment.  Menke testified that he does not believe appellant is supervisable in a nonsecure community setting.

            Currently there are three people who were convicted of first-degree criminal sexual conduct at Alpha House through Ramsey County funding.  One of these people, J.S., molested three boys over a period of three years, but these boys were older than appellant's victims.  Menke testified that in comparing appellant with J.S., he concluded that appellant is arguably more dangerous than J.S.  Menke stated that J.S.'s background and his future adjustment in the community made him one of the exceptional cases and, therefore, the county funded his treatment.  Moreover, Menke testified that his department operates from the presumption that first-degree sex offenders will go to prison.

            Appellant testified that he signed the conditions of probation, which stated that he would enter and complete a residential sex-offender treatmentprogram at his own expense.  Appellant also acknowledged that his failure to do so would be a violation of probation and a probation violation would send him to prison.  Appellant now challenges the revocation of his probation and the denial of his motion to withdraw his guilty plea.

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion in revoking his probation because (1) the violation was the result of unintentional conduct, and (2) appellant's equal protection rights were violated.  We disagree.

            1.            Unintentional Conduct

The district 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 that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  Generally, district courts apply a three-step analysis before revoking probation.  The courts must (1) specify the condition that was 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.  But probation may also be revoked if it is premised on a treatment program that is no longer possible.  State v. Morrow, 492 N.W.2d 539, 543-44 (Minn. App. 1992); State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992).

            Here, the court clearly stated that the condition that was violated was appellant's failure to enter and complete the Alpha Human Services sex-offender treatment program.  Revoking probation, even when the violation is due to a defendant's inability to find funding for treatment, has been held to be within the court's broad discretion.  See Morrow, 492 N.W.2d at 543-49.

            The court also found that the need for confinement outweighed the policies favoring probation.  Appellant molested his own children when they were five years old and younger, and Menke testified that the only place appellant has a chance to successfully participate in sex-offender-specific treatment is in a secure facility.  There are only two residential sex-offender treatment programs in Minnesota, Alpha Human Services and the Minnesota Corrections FacilityLino Lakes.  Because there was substantial testimony that appellant is a risk to the community and requires confinement, and there is no funding for appellant to enroll at Alpha, either public or private, the court's only option was to revoke probation and execute the sentence. 

            Therefore, absent any constitutional infirmity, the district court acted within its discretion by revoking appellant's probation.

            2.            Equal Protection

            Appellant's equal protection argument is aimed at a funding decision.  He does not challenge any statute, ordinance, or administrative rule that is facially discriminatory, nor is he challenging the application of a facially neutral law as discriminating against a particular class of individuals.  See Morrow, 492 N.W.2d at 548-49.  Rather, appellant argues that he was individually discriminated against because another person received funding for sex-offender treatment at Alpha House and he did not.  We disagree.

            In order to refute an equal protection claim, it is only necessary to show that there is some rational basis for the difference in treatment.  State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991).  That standard is satisfied if there are genuine and substantial reasons for the disparate treatment that are not manifestly arbitrary or fanciful and are relevant to a valid state purpose.  Morrow, 492 N.W.2d at 548.

            According to the record, there were several bases for treating appellant differently from J.S.  First, there was no money left when appellant's probation revocation was considered, and Ramsey County is not obligated to provide funding for sex-offender treatment programs.  State v. Osterloh, 275 N.W.2d 578, 580 (Minn. 1978); Morrow, 492 N.W.2d at 545-46.  Second, appellant's victims were his own children, the sexual conduct involved multiple forms of penetration, and the victims were younger than J.S.'s victims, and therefore, more vulnerable.  Third, appellant was considered to be more dangerous than J.S. because of his detailed urges to sexually abuse young children.  Fourth, as in Morrow, the only way the state may hold appellant accountable for his actions is through imprisonment.  See Morrow, 492 N.W.2d at 549.  Thus, the state had a rational basis for treating appellant differently from J.S. and did not violate his right to equal protection.

            We understand that revocation of appellant's probation involves a serious loss.  State v. Belfry, 431 N.W.2d 572, 573 (Minn. App. 1988), review denied (Minn. Jan. 25, 1989).  But "it must be remembered that the sentence was not imposed for a circumstance beyond the probationer's control ‘but because he had committed a crime.'"  Morrow, 492 N.W.2d at 545 (quoting Bearden v. Georgia, 461 U.S. 660, 668, 103 S. Ct. 2064, 2070 n.9 (1983)).  Thus, we conclude that the district court did not abuse its discretion in revoking appellant's probation when he was unable to secure private funding for sex-offender treatment.

II.

            A reviewing court will reverse the district court's determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  While a defendant does not have an absolute right to withdraw a guilty plea, a court must allow the withdrawal of a plea to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; see also Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  A manifest injustice occurs if the plea is not accurate, voluntary, and intelligently entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).

            Appellant argues that the record of the guilty plea does not establish that he understood that his failure to obtain funding to pay for treatment would be a probation violation and result in the execution of his sentence and, therefore, his plea was not intelligently made. 

            In order for a plea to be intelligent and knowing, a defendant must be aware of the relevant circumstances and direct consequences of the plea.  Alanis, 583 N.W.2d at 578; State v. Brown, 606 N.W.2d 670, 675 (Minn. 2000) (holding defendant must have "knowledge of the consequences of the plea").  Direct consequences are those that "flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed * * * ."  Alanis, 583 N.W.2d at 578.  Definite, immediate, and automatic consequences must be punitive and a part of defendant's sentence in order to constitute direct consequences for purposes of establishing manifest injustice to withdraw a guilty plea.  Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002).  "A defendant need not be advised of every consequence for his plea to be intelligent * * *."  Id. at 903 (emphasis in original). 

            Here, the record clearly establishes that appellant's plea was intelligently made.  First, the plea offer originated from appellant after it became clear to him that public funds for a residential sex-offender treatment program were not available.  Second, the parties' counsel met with the court at least three times prior to the guilty plea to discuss the feasibility of appellant funding his own treatment as a basis for the plea agreement.  Third, the parties discussed and understood that if appellant was unable to secure his own funding for treatment he would go to prison.  Fourth, appellant's counsel was allowed ample time to discuss the consequences of the plea agreement with appellant and his family.  Fifth, appellant told the court at the guilty plea hearing that he understood the plea agreement.  Lastly, appellant acknowledged at sentencing that he understood at the time of the guilty plea that his failure to fund treatment would be considered a violation of his probation.

            Thus, appellant's plea was intelligently made, and the court did not abuse its discretion by denying appellant's request to withdraw his guilty plea.

            Affirmed.

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