State of Minnesota, Respondent, vs. McKinley L. Mays, Appellant.

State of Minnesota, Respondent, vs. McKinley L. Mays, Appellant. A06-1983, Court of Appeals Unpublished Decision, September 18, 2007.

 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1983

 

 

State of Minnesota,

Respondent,

 

vs.

 

McKinley L. Mays,

Appellant.

 

 

Filed September 18, 2007

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 04036820

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court stayed the imposition of sentence, subject to probationary conditions, on McKinley Mays's conviction of first-degree controlled substance offense.  When Mays was discharged for breaching conditions of his halfway-house program, the district court revoked probation and executed the stayed sentence.  Mays successfully appealed the revocation, arguing that the district court failed to consider the factors set out in State v. Austin, 295 N.W.2d 246 (Minn. 1980).  On remand, the district court addressed the three Austinfactors, revoked probation, and executed a seventy-four-month prison sentence.  On appeal from remand, Mays challenges the sufficiency of the evidence to support findings on the second and third Austinfactors.  Because the evidence was sufficient to support the findings, we affirm.

F A C T S

            McKinley Mays was arrested for possession of more than twenty-five grams of cocaine, and he was charged with first-degree controlled substance crime under Minn. Stat. § 152.021, subd. 2(1) (2002).  In pretrial negotiations, Mays agreed to plead guilty with the understanding that the district court would stay the imposition of the presumptive executed sentence of eighty-six-months imprisonment on the condition that Mays enter and complete chemical-dependency treatment.  At the guilty-plea hearing the district court instructed Mays that he would be released to the in-patient treatment program followed by aftercare and, if he was not successful, he would be required to serve the presumptive prison sentence. 

            Mays successfully completed inpatient treatment and then moved to the treatment center's halfway house to begin his aftercare program.  Although Mays continued to attend aftercare meetings, he was discharged from the halfway house for failure to comply with its policies and contracts.

            Because Mays failed to complete the halfway-house program, the district court concluded that Mays violated the conditions of his probation, revoked the stay, and executed a seventy-four-month prison sentence. 

            In his first appeal, Mays challenged the district court's decision on two grounds.  First, Mays argued that his plea agreement did not require him to complete the halfway-house program.  Second, Mays argued that the district court failed to make findings on the three Austinfactors.  This court concluded that Mays's stay of imposition of sentence was conditioned on successful completion of the halfway-house program.  State v. Mays, No. A05-589, 2006 WL 696250, at *3 n.2 (Minn. App. Mar. 21, 2006).  We further concluded that the district court's initial deferral of Mays's sentencing was essentially "a stay of imposition of sentence with conditions of probation."  Id.at *3.  On that basis we agreed with Mays's contention that the district court was required to make the three Austinfindings before imposing the sentence.  Id.  Because the district court had not addressed the second and third Austinfactors, we reversed and remanded.  Id.at *4.

            On remand, the district court addressed the second and third Austinfactors.  On appeal from remand, Mays argues that the evidence was insufficient to support the district court's findings on the second and third Austin findings.

D E C I S I O N

            A district court has broad discretion in determining whether to revoke probation.  State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004).  But the wide range of discretion does not mean that probation can be revoked every time a condition of probation is violated.  State v. Austin, 295 N.W.2d 246, 250-51 (Minn. 1980).  As a matter of policy, revocation must involve a balancing of the individual's interest in freedom, the state's interest in rehabilitation, and the public's interest in safety.  State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005).  To implement this policy, we require district courts to make three findings before revoking probation.  Id.at 606.  District courts must (1) designate the specific condition violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation.  Id.

            On a challenge to the sufficiency of the evidence, we review the district court's findings of fact for clear error.  State v. Ray, 659 N.W.2d 736, 742 (Minn. 2003).  In revocation proceedings, the state has the burden of proof and must present clear and convincing evidence.  Ornelas, 675 N.W.2d at 79.  The clear and convincing evidence must establish that the probationer has violated "conditions of probation and that probation should therefore be revoked."  Minn. R. Crim. P. 27.04, subd. 2(1)(b) (emphasis added); see also Minn. R. Crim. P. 27.04, subd. 3(1) (requiring hearing in accordance with subdivision 2(1)(b)).  Therefore, the state must present clear and convincing evidence that the violation was intentional or inexcusable and that the need for confinement outweighs the policies favoring probation.

I

            Mays argues that the state failed to produce sufficient evidence to show that his probation violation was intentional or inexcusable.  The meaning of "intentional or inexcusable" has not been specifically developed.  One explanation of the standard is that:

[I]t must be proved that compliance was within the defendant's ability and that he or she deliberately failed to do so, though the courts have not been consistent in applying this requirement.  In general, however, it seems clear that the state must prove both an intentional violation and the lack of a reasonable excuse for noncompliance.

 

9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.47, subd. D (3d ed. 2006).  The core of the requirement seems to be that the state must prove that the probationer did not make a good-faith effort to comply with the requirement.  See State v. Muhlenhardt, 403 N.W.2d 638, 639 (Minn. 1987) (approving court's finding that defendant did not make good-faith effort to comply with condition).

            In this case, the only evidence in the record that Mays's violation was intentional or inexcusable is the discharge summary from the halfway house.  The discharge summary states:

Client made little progress while in our program.  Client did put forth some effort to get involved but his negative attitude and behavior continued to be a problem.  Client was discharged after several contracts and restrictions failed.

 

The discharge summary states that Mays made "minimum progress" in seeking employment or school admission, working on life management issues, and creating long-and short-term goals.  In addition, it notes that Mays "will need to work on his attitude."

            Although the evidence is less concrete than we would prefer, we cannot conclude that the district court's finding was clearly erroneous.  The record indicates that the halfway house made multiple attempts to work with Mays.  The record does not provide the text of the "several contracts and restrictions" that Mays breached, but it does establish that Mays was not in compliance with the halfway-house program.  The district court could reasonably infer that the contracts related to one or more of the four goals listed on the discharge summaryseeking employment, working on life-management issues, participating in the aftercare group, and creating short- and long-term goals.  Thus, the discharge summary gave the district court specific information about Mays's failures in the halfway house.  The district court could therefore conclude that his conduct in the halfway house was inexcusable.  The record contains no indication that the conduct was accidental or unintentional, and the discharge summary's reference to attitude and "minimum progress" supports a determination that Mays did not make a good-faith effort to comply with the requirements of the program. 

II

            The district court specifically referred to the third finding required under Austin and Modtland:

With regard to the third Austin factor, this court is well-versed in the benefits of probation as opposed to confinement of Defendants.  In this case, Mr. Mays was given an opportunity to complete a full course of treatment and aftercare, and only after doing so would he avoid the extensive commitment to prison.  Mr. Mays pled guilty to first degree possession of controlled substances, a serious offense that, absent policies favoring probation and restorative justice, would ordinarily send him to prison for 86 months.  Despite his initial progress in treatment, the seriousness of the offense, when combined with the unexcused violation of a generous plea agreement justifies the confinement of Mr. Mays to prison.

 

Mays challenges the sufficiency of the evidence to support the district court's finding. 

            In determining whether the need for confinement outweighs the policies favoring probation, the district court must base its decision on "the original offense and the intervening conduct."  Modtland, 695 N.W.2d at 607 (quotation omitted).  The court should consider (1) whether confinement is necessary to protect the public from further criminal activity, (2) whether the offender is in need of treatment that can most effectively be provided if confined, or (3) whether it would unduly depreciate the seriousness of the violation if probation were not revoked.  Id.

            The evidence suggests that Mays was less of a risk to the public at the time of revocation than he was when he pleaded guilty because he had successfully completed in-patient treatment and was attending aftercare meetings.  But the three considerations discussed in Modtland provide a basis for the district court's conclusion that the need for confinement outweighed the policies favoring probation. 

First, because Mays's original offense involved drugs and Mays failed to complete the halfway-house treatment program, Mays would be more likely to commit further drug-related offenses.  Thus, the evidence reasonably supports the district court's reasoning that confinement was necessary to protect the public from further criminal activity.  Second, because Mays failed to successfully complete the halfway-house program while on probation, the evidence reasonably supports the inference that Mays was in need of treatment that could most effectively be provided in prison.  Third, the record also indicates that the halfway-house program was a relatively large part of the plea agreement.  Thus, the evidence supports the district court's reasoning that it would unduly depreciate the seriousness of the violation if probation were not revoked. 

In light of these considerations, the evidence was sufficient to support the district court's conclusion that the need for confinement outweighed the policies favoring probation.  Therefore, the district court's finding on the third Austin factor was not clearly erroneous.

            Affirmed.