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

State of Minnesota, Respondent, vs. Roger Wayne Bennett, Appellant. A06-108, Court of Appeals Unpublished, October 17, 2006.

This opinion will be unpublished and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

A06-108

 

 

State of Minnesota,
Respondent,

vs.

Roger Wayne Bennett,
Appellant.

 

 

Filed October 17, 2006

Affirmed

Peterson, Judge

 

Olmsted County District Court

File No. K9-01-2138

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent)

 

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

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order revoking probation imposed following his conviction of conspiracy to commit first-degree controlled-substance crime, appellant Roger Wayne Bennett argues that the district court abused its discretion in finding that the need for confinement outweighed the policies favoring probation.  We affirm.

FACTS             In 2001, Bennett was charged with first- and second-degree conspiracy to commit a controlled-substance crime; first-degree sale of a controlled substance; and second-degree possession of a controlled substance. Pursuant to a plea agreement, Bennett pleaded guilty to one count of first-degree conspiracy to commit a controlled-substance crime, and the state dismissed the remaining charges and agreed to recommend a downward dispositional departure from the presumptive executed sentence of 81 months.

            The presentence-investigation report (PSI) disagreed with the dispositional departure and recommended imposing the presumptive sentence.  The PSI noted that Bennett was completely resistant to chemical-dependency treatment and probationary services.  The PSI also cited Bennett's statement to a chemical-use evaluator, "If you think you are going to put me in treatment, you have another thing coming."  At the sentencing hearing, Bennett's attorney 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 probation conditions included requirements that he serve six months in jail and refrain from using or possessing marijuana.  The district court did not require Bennett to participate in chemical-dependency treatment as a probation condition.

            Bennett was released from jail on January 28, 2004.  His first contact with probation services occurred on March 10, 2004, when two probation officers accompanied by a police officer conducted a field visit to 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.  A pipe, cash, and several packets of marijuana were found on Bennett's person.  Based on Bennett's admission that he owned the marijuana found in his home, a probation-violation report was filed.

            The district court revoked Bennett's probation and imposed the presumptive executed sentence.  The district court found that Bennett violated his probation by possessing marijuana and drug paraphernalia and that the violation was intentional and willful.  This court affirmed the probation revocation order.  State v. Bennett, No. A04-1450 (Minn. App. Mar. 15, 2005).  By order filed June 16, 2005, the supreme court reversed this court's decision and remanded to the district court for a new decision in light of State v. Modtland, 695 N.W.2d 602 (Minn. 2005).  State v. Bennet, No. A04-1450 (Minn. App. May 25, 2005) (order).

            A dispositional advisor for the public defender's office, who had recently met with Bennett, testified at the remand hearing that Bennett "had changed his mind" about chemical-dependency treatment and was "very interested in treatment."

            After noting that its previous order contained findings on the probation conditions violated by Bennett and that the violation was intentional and willful, the court stated:

            I also find that the need for incarceration does outweigh the policies favoring probation, specifically in this case Mr. Bennett himself at the time of sentencing was not motivated for treatment, apparently told [the sentencing judge] in no uncertain terms that he wasn't going to go to treatment, told . . . the senior probation officer doing the PSI, he wasn't going to do treatment, and at this point I find his motivation requesting treatment at this juncture questionable at best.  His current medical condition is irrelevant to the decision here today.  We knew that Mr. Bennett's health was precarious back at the original time of sentencing, which is what the State had recommended the downward departure for in the first place knowing that he was having poor health. . . . 

 

            The other thing that is important here is that the failure of this Court to revoke his probation would unduly depreciate the seriousness of the violations that Mr. Bennett got himself involved in shortly after his release from custody.

 

            The district court again revoked Bennett's probation and executed the 81-month prison sentence.  This appeal followed.

D E C I S I O N

            "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 that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  "‘When revoking probation, the district 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 need for confinement outweighs the policies favoring probation.'"  State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (quoting Austin, 295 N.W.2d at 250).

            Bennett argues that the district court erred in finding that the need for confinement outweighs the policies favoring probation.  In State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005), the supreme court rejected an interpretation of Austin recognizing a "sufficient evidence" exception to the findings requirement and held that the district court must make specific findings on the Austin factors even in the absence of a request by the defendant.  In addressing the third Austin factor, the Modtland court stated:

[W]e emphasize . . . that policy considerations may require that probation not be revoked even though the facts may allow it and that the purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. When determining if revocation is appropriate, courts must balance the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety, and base their decisions on sound judgment and not just their will.

 

Id. at 606-07 (quotations omitted).

            Bennett argues that since he has been incarcerated and sober for a significant amount of time, he has recognized his addiction and need for treatment.  But the district court's comments at the hearing on remand indicate that it found unpersuasive Bennett's claim that he was motivated for treatment.  It is the district court's role to judge witness credibility, and we defer to the district court's credibility evaluations.  State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997). Bennett also argues that he has not exhausted community-based treatment alternatives and cites the probation officer's delay in contacting him following his release from jail.  Bennett's argument misrepresents what happened in this case.  Bennett's failure to obtain treatment did not result from any failure by the court system, but rather resulted from Bennett's resistance to treatment.

            Bennett cites his poor health and suggests that his probation violation resulted from his efforts to self-medicate.  But the district court found that Bennett's medical condition was irrelevant to probation revocation, specifically noting that it was Bennett's health concerns that motivated the state to agree to a probationary sentence initially.

            Bennett argues that his violation was a technical violation.  During the probationary search, a large bag, weighing 3.57 ounces and containing smaller bags of marijuana, was found in Bennett's closet.  Three bags of marijuana were found on Bennett's person, weighing .85, 1.8, and .03 ounces.  He also had a $100 bill in his possession and admitted that the marijuana belonged to him.  Bennett's conviction resulted from the discovery of 200 pounds of marijuana in a hidden compartment in a vehicle registered to Bennett.  Particularly in light of the nature of that offense, possession of marijuana, considered together with the cash found on Bennett's person, was a serious violation.  Cf. In re Welfare of J.K., 641 N.W.2d 617, 620, 623 (Minn. App. 2002) (describing as technical violations the failure to complete weekend work crew; the violation of curfew; the failure to attend a school enrollment appointment; the failure to attend classes after enrollment; and the failure to fully cooperate with treatment program).

            In a pro se supplemental brief, Bennett sets forth alleged facts that occurred before the entry of his plea.  He provides no citations to the record supporting the alleged facts; nor does he provide any legal authority showing that they would excuse his probation violation.  This court, therefore, will not consider any claim related to those alleged facts.  See Minn. R. Civ. App. P. 128.03 (whenever a reference is made in a brief to any part of the record, a citation shall be made to the record or to the page of the appendix or supplemental record where the particular part of the record is reproduced); State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding that issues not supported by argument or citation to legal authority are deemed waived).  We also decline to consider Bennett's claim that his probation officer acted improperly in conducting the probationary search, for which Bennett provides no legal or factual support.

            Bennett disputes statements in the PSI.  As already stated, it is the district court's role to determine credibility.

            Probation may be revoked if "the offender is in need of correctional treatment which can most effectively be provided if he is confined" or "it would unduly depreciate the seriousness of the violation if probation were not revoked."  Modtland, 695 N.W.2d at 607 (quotation omitted).  Based on Bennett's resistance to treatment, the district court found that the need for incarceration outweighed the policies favoring probation.  It was within the district court's discretion to reject Bennett's claim that he is now motivated for treatment and conclude that treatment could be provided most effectively if Bennett is confined.  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 district court also found that failure to revoke probation would unduly depreciate the seriousness of Bennett's violation.  Bennett's admission to the possession of marijuana shortly after his release from confinement for a severity-level VIII controlled-substance offense supports the district court's finding that continuing probation would depreciate the seriousness of his probation violation.  See State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (stating that "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'" (quoting Minn. Sent.  Guidelines III.B) (alteration in original)) review denied (Minn. Sept. 25, 2002).

            Bennett has failed to demonstrate that the district court erred in applying the Modtland balancing test.

            Affirmed.