State of Minnesota, Respondent, vs. Adam Michael Wintz, Appellant.

State of Minnesota, Respondent, vs. Adam Michael Wintz, Appellant. A04-1514, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and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

A04-1514

 

 

State of Minnesota,

Respondent,

 

vs.

 

Adam Michael Wintz,

Appellant.

 

 

Filed March 15, 2005

Affirmed

Halbrooks, Judge

 

 

Blue Earth County District Court

File No. K0-03-1272

 

 

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

 

Ross Arneson, Blue Earth County Attorney, 410 South 5th Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)

 

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

 

 

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court's order revoking his probation and executing his 98-month sentence for aiding and abetting conspiracy to manufacture methamphetamine.  Appellant contends that the district court abused its discretion by revoking appellant's probation when this was his first probation violation and the court had sanctions short of imprisonment at its disposal.  Because we conclude that the district court did not abuse its discretion, we affirm. 

FACTS

            In December 2003, appellant Adam Michael Wintz pleaded guilty to one count of aiding and abetting conspiracy to manufacture methamphetamine in violation of Minn. Stat. § 152.021, subds. 2(a), 3 (2002).  At the sentencing hearing, appellant's counsel explained:

[Appellant] recognizes that the state is giving him . . . one final chance to clean up his act.  He also knows . . .  [that] there is no room for fudging or error here . . . that they're going to be looking over him like a hawk and that if he uses again, he can look forward to a violation and going to prison.

 

The district court sentenced appellant to 98 months in prison but stayed execution of the sentence subject to various conditions of probation, including that appellant not use mood-altering drugs and that he remain law-abiding.  At the conclusion of the hearing, the district court said, "All right, Mr. Wintz, I think it should be no secret that you are on an extremely tight and inflexible leash.  If you get one bad test, you're out of here."

            In May 2004, appellant's probation officer recommended that the district court vacate appellant's stay of execution after appellant violated the terms of his probation by using marijuana while serving time in jail for a different drug-related offense.[1]  At the revocation hearing, appellant admitted to the violation when he tested positive for the active ingredient in marijuana.  For his part, appellant explained that he had "truly been trying" to stay soberby working in a new job, sending money to his family, re-obtaining his driver's license, and securing a sponsor for when he had "bad days [or] urges."  The district court vacated the stay of execution and sentenced appellant to the Commissioner of Corrections for 98 months, or 65 1/3 months in prison and 32 2/3 months on supervised release.  While expressing its reluctance in doing so, the district court articulated its reasons for issuing the stay:

I am really reluctant to send off a man to prison [for] ingesting marijuana, but I can't ignore the history as outlined by [the probation officer] and the frustration.  And I know [the probation officer].  I know he's not going to give up on somebody lightly, so he's to his wit's end as to what to do.  I also have a departure.  Frankly, [appellant was] supposed to go to prison for 98 months; but because it was recognized that there was a need for treatment, there was an agreement to which I consented that [appellant] would stay local with [his] probation as long as certain conditions were met.  And that was something that was identified back in January when this sentence was imposed.  So I am going to vacate the stay. 

 

(Emphasis added.)  This appeal follows. 

D E C I S I O N

            Because the state did not file a brief, this matter proceeds on the merits pursuant to Minn. R. Civ. App. P. 142.03.  If a probationer violates conditions of probation, the district court may revoke probation and execute the previously imposed sentence.  Minn. Stat. § 609.14, subds. 1(a), 3 (2002).  "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).  To revoke 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 argues that the district court abused its discretion under the third Austin prong by revoking his probation when this was appellant's first violation and the court had other sanctions available to it.  Specifically, appellant claims that the district court revoked his probation because the probation officer "had given up on [him] and was tired of supervising him."  Citing guidelines adopted by the Austin court to analyze whether the need for confinement outweighs the policies favoring probation, appellant argues that a probation officer's "frustration" is not a valid reason to revoke probation.  295 N.W.2d at 250.  Those guidelines read:

                                    Grounds for and alternatives to probation revocation.

 

(a)       Violation of a condition is both a necessary and a sufficient ground for the revocation of probation.  Revocation followed by imprisonment should not be the disposition, however, unless the 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 American Bar Association Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).  But, "where the record contains sufficient evidence to warrant the revocation," a court's failure to make express findings is not an abuse of discretion.  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Revocation of a stayed sentence is also justified when the probationer fails to abide by a court order in the face of repeated warnings.  Id.  Furthermore, "while the sentencing guidelines urge the courts to exercise restraint in imprisoning those who violate probation conditions where the original offense was of a 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) (alteration in original) (quoting Minn. Sent. Guidelines III.B). 

While it might seem harsh to send appellant to prison for more than five years because he used marijuana, we do not decide the matter as if we were the district court.  Instead, we review the record to determine whether the district court abused its discretion by revoking probation.  Austin, 295 N.W.2d at 249-50.  The record reflects that appellant was convicted of a severity level nine offense and that appellant was given a generous opportunity to avoid prison time.  After initially agreeing to probation for the underlying offense, the district court specifically warned appellant, "[i]f you get one bad test, you're out of here."  At the revocation hearing, the probation officer explained that appellant had completed a drug treatment program for a prior drug-related offense and that he had been admitted to a halfway house, where he continued to abuse alcohol and methamphetamine.  While the district court expressed reluctance in revoking probation, it also explained that appellant had overtly violated the terms of his probation.  See Theel, 532 N.W.2d at 267 (explaining that a probationer's failure to follow the district court's orderdespite repeated warnings"indicates that the probation was not succeeding"). 

A review of the record reveals that the district court's reason for revoking appellant's probation was not based solely on the probation officer's "frustration" with appellant.[2]  Instead, as in Hamilton, appellant's blatant "failure to abide by the conditions of his probation provided a sufficient basis for the district court to conclude that he was unwilling to be rehabilitated, and therefore that the policies favoring probation are outweighed by the need for confinement."  646 N.W.2d at 918.  Accordingly, the district court did not abuse its discretion by revoking the probation. 

            Affirmed.

[1] Appellant was serving 365 days for a fifth-degree controlled-substance crime.  As the probation officer explained, that sentence "started out as a stay of adjudication, which ultimately the [district court] revoked . . . ."

[2]Moreover, district courts routinely rely on the recommendations of probation officers when making revocation determinations, and appellant cites no authority showing that reliance on such recommendations constitutes an abuse of discretion.