State of Minnesota, Respondent, vs. Roger Bennett, Appellant.

State of Minnesota, Respondent, vs. Roger Bennett, Appellant. A04-1450, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1450

 

State of Minnesota,
Respondent,
 
vs.
 
Roger Bennett,
Appellant.

 

Filed March 15, 2005

Affirmed

Wright, Judge

 

Olmsted County District Court

File No. K9-01-2138

 

 

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

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court's decision to revoke appellant's probation and impose an executed sentence of 81 months' imprisonment for conspiracy to commit a first-degree controlled substance offense.  Appellant argues that the district court abused its discretion by failing to consider sanctions in lieu of incarceration.  Appellant also raises several constitutional challenges to the district court's order in his supplemental pro se brief.  We affirm.

FACTS

 

On June 19, 2001, appellant Roger Bennett was charged with first- and second-degree conspiracy to commit a controlled substance crime, in violation of Minn. Stat. §§ 152.021, subd. 1(4), .022, subd. 2(4), .096 (2000); first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 1(4); and second-degree possession of a controlled substance, in violation of Minn. Stat. § 152.022, subd. 2(4).  Pursuant to a plea agreement, Bennett pleaded guilty to one count of first-degree conspiracy to commit a controlled substance crime.  In exchange for Bennett's guilty plea, the state dismissed the remaining charges and agreed to recommend a downward dispositional departure from the presumptive sentence of 81 months.[1] 

The presentence investigation report disagreed with the dispositional departure in the plea agreement and recommended imposition of the guideline sentence.  In support of the recommendation, the report noted that Bennett was completely resistant to chemical-dependency treatment and to probationary services.  The report also cited Bennett's statement to the chemical-use evaluator that, "If you think you are going to put me in treatment, you have another thing coming."  At the sentencing hearing, Bennett's attorney also advised the district court, "The idea that you're going to get Roger Bennett to go to treatment and that that's going to be successful is probably a waste of money." 

The district court honored the plea agreement, stayed imposition of the sentence, and placed Bennett on probation for 30 years.  Bennett's conditions of probation required him to (1) serve six months in jail; (2) refrain from using or possessing marijuana; and (3)  "be of good behavior and obey the laws of the United States and Minnesota."  The district court did not require Bennett to participate in chemical dependency treatment as a condition of his probation. 

Bennett was released from jail on January 28, 2004.  Bennett's first contact with probation services occurred on March 10, 2004, when two probation officers accompanied by a police officer conducted a field visit at Bennett's home.  During the visit, the probation officers saw marijuana lying on Bennett's kitchen table and, on further investigation, found more marijuana in the bedroom.  At the probation officers' request, the police officer placed Bennett under arrest for violating his probation.  Pursuant to a search incident to the arrest, a pipe, cash, and several packets of marijuana were recovered from Bennett.  Bennett later admitted that he owned the marijuana found in his home.  Based on Bennett's admission, Bennett's probation officer filed a probation violation report with the district court. 

At the probation revocation hearing, the arresting officer, Bennett's probation officer, and the police officer to whom Bennett confessed, testified that Bennett violated conditions of his probation by possessing marijuana and drug paraphernalia.  Bennett's counsel urged the district court to reinstate Bennett's probation and permit Bennett the opportunity to seek drug treatment.  Bennett also argued that, because probation services waited so long to initiate contact with him, he had not received a fair chance to succeed on probation.  The state recommended execution of Bennett's sentence.

The district court revoked Bennett's probation and imposed the presumptive executed sentence of 81 months' imprisonment.  The district court noted that the case was atypical because the court imposed a downward dispositional departure from a presumptive sentence of imprisonment against the recommendation of probation services.  The district court concluded that the state proved the violation by clear and convincing evidence and that the violation was intentional and willful.  In its written order, the district court clarified that Bennett violated three conditions of his probation by failing to (1) remain law-abiding; (2) refrain from possessing marijuana; and (3) refrain from possessing drug paraphernalia.  The district court found that Bennett failed to seek treatment while in custody and concluded that Bennett was not amenable to probation.  This appeal followed. 

D E C I S I O N

 

I.

 

            Bennett argues that the district court abused its discretion in revoking his probation and imposing an executed sentence.  If a probationer violates a condition of probation, the district court may revoke probation and impose a sentence previously stayed.  Minn. Stat. § 609.14, subd. 1(a) (2004).  The state must prove the violation of a condition of probation by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3(2); State v. Johnson, 679 N.W.2d 169, 177 (Minn. App. 2004).  The district court has broad discretion in deciding whether to revoke probation.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The district court's decision will not be disturbed absent a clear abuse of that discretion.  Id. 

            To revoke probation, the district court must (1) designate a specific condition that was violated; (2) find that the violation was intentional and inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (citing Austin, 295 N.W.2d at 250).  But a district court's failure to make these express findings does not compel reversal when the record contains sufficient evidence to warrant the revocation.  State v. Bollin, 670 N.W.2d 605, 608 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

            Bennett does not challenge the district court's findings that he intentionally violated probation.  Rather, he argues that the district court erred in revoking probation without considering continued probation or chemical-dependency treatment.  We construe Bennett's argument as a challenge to whether the need for confinement outweighs the policies favoring probation. 

Because the purpose of probation is rehabilitation, as a general rule, a district court should resort to revocation only when treatment has failed.  Austin, 295 N.W.2d at 250.  But in assessing whether the need for confinement outweighs the policies favoring probation, courts balance the probationer's interests against the state's interest in rehabilitating the probationer and ensuring public safety.  Id.  Therefore, revocation followed by imprisonment is proper if the district court finds on the basis of the original offense and the intervening conduct of the offender that:

(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 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (1970)).  Furthermore, while the sentencing guidelines urge district courts to exercise restraint in imprisoning those who violate probation conditions where the original offense was of lower severity, "[l]ess judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense."  State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (quoting Minn. Sent. Guidelines III.B), review denied (Minn. Sept. 25, 2002). 

            Based on the initial assessment in the presentence investigation report and Bennett's resistance to treatment, the district court concluded that Bennett was not amenable to probation.  Although the district court did not expressly conclude that the need for confinement outweighed policies favoring probation, this conclusion may be inferred from the district court's ruling.

            Even without the benefit of this inference, the record establishes that the need for confinement outweighs the policies favoring probation.  First, there is a public interest in being protected against those who persistently use and distribute illegal drugs.  The record establishes that Bennett was arrested and charged with a fifth-degree controlled substance crime six weeks after being released from custody for his conviction of first-degree conspiracy to distribute a controlled substance.  Committing this second criminal offense so soon after release serves as an adequate basis for the district court to conclude that confinement was necessary to protect the public from further drug-related activity, including drug trafficking. 

Secondly, the record demonstrates that, although Bennett now seeks chemical-dependency treatment, he adamantly refused such treatment in the past.  During his chemical-health assessment, Bennett told the assessor, "If you think you are going to put me in treatment, you have another thing coming."  Bennett also commented during the presentence investigation that he "would be getting screwed" if treatment were recommended.  At the sentencing hearing, Bennett's attorney further stated, "The idea that you're going to get Roger Bennett to go to treatment and that that's going to be successful is probably a waste of money."  Moreover, Bennett failed to take advantage of his opportunity for drug treatment while incarcerated.  When it appears that treatment would be ineffective in an unconfined setting, as it does here, the need for confinement prevails and revocation of probation is justified.  See Austin, 295 N.W.2d at 251(affirming revocation when, because appellant failed to take advantage of opportunity for treatment or show commitment to rehabilitation, it was not unreasonable to conclude that treatment had failed).  The record demonstrates that the chemical-dependency treatment Bennett requires would be provided most effectively in a confined setting. 

Third, Bennett committed a serious violation of his probation.  Bennett was sentenced for conspiracy to commit a first-degree controlled substance offense and violated a critical condition of his probationto refrain from possessing illegal substances.  Bennett was specifically warned during the sentencing hearing that he must "abstain from marijuana" and must not possess drug paraphernalia.  But only six weeks after being released from custody, Bennett admitted possessing marijuana and drug paraphernalia.  The significance of the condition to refrain from possessing illegal substances would have been diluted if Bennett's probation had not been revoked after he admitted such a flagrant violation of the condition.  See id.  That this was Bennett's first probation violation does not mitigate the flagrancy of the violation.  Moreover, Bennett was on probation for committing an offense with a severity level of nine, thereby mandating less judicial forbearance in revoking probation.  See Hamilton, 646 N.W.2d at 918. 

Accordingly, the district court acted within its discretion in revoking Bennett's probation without first imposing treatment as a probationary condition.

Bennett also contends that he never reviewed or signed a probation agreement setting forth the conditions of probation.  Thus, he argues, revocation was erroneous because he never agreed to the conditions of probation.  Bennett is correct that "it is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty."  Ornelas, 675 N.W.2d at 80 (quoting United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977)).  But due process only requires that before a probation violation can occur, the probationary condition must actually be imposed by the district court, set forth in writing, and given to the defendant.  Id.; Minn. R. Crim. P. 27.03, subd. 4(E)(3).  There is no requirement that a probationer agree to the condition. 

Here, the district court specifically advised Bennett at the sentencing hearing that he must refrain from possessing or using marijuana.  Three days after the hearing, the district court also mailed Bennett a written order setting forth these conditions.  The order plainly advised Bennett that committing any prohibited acts may result in revocation.  Accordingly, although Bennett had not signed a probation agreement, the district court was not precluded from revoking Bennett's probation for violating conditions of which he had been informed at the sentencing hearing and in the district court's subsequent sentencing order.

Bennett further contends that the district court abused its discretion in revoking probation when he had not been supervised during the six weeks following his release from jail.  This argument also lacks merit.  The district court questioned Bennett's probation officer at the revocation hearing about the six-week delay in contacting Bennett.  Indeed, optimal circumstances would have included closer supervision. But it is Bennett who shoulders the affirmative duty to maintain contact with his probation officer.  Thus, the lack of supervision during this period does not provide a legal defense or excuse for Bennett's failure to abide by conditions of which he had been advised.  Bennett's argument, therefore, fails.  

II.

In his supplemental pro se brief, Bennett raises several constitutional challenges to the district court's order.  Specifically, Bennett argues that (1) the state violated his right to a speedy trial; (2) the state committed prosecutorial misconduct; and (3) the police officer failed to read him his Miranda rights when he was arrested for fifth-degree possession of marijuana.  Bennett, however, failed to raise or litigate any of these issues in the district court.  Issues not raised, argued, and considered in the district court are waived on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).   

Affirmed.

[1] For commission of a first-degree controlled substance crime in 2001, a severity level VIII offense, the presumptive guideline sentence, with a criminal history score of zero, is an executed sentence of 81 to 91 months.  Minn. Sent. Guidelines IV.  The presumptive sentence for conspiracy to commit a controlled substance offense is the same as that for the completed offense.  Minn. Sent. Guidelines II.G.