Hennen Construction Co., Appellant, vs. Pilot Land Development, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-98-620

State of Minnesota,
Respondent,

vs.

Mostafa David Ghalichi,
Appellant.

Filed September 22, 1998
Affirmed as modified
Amundson, Judge

Dakota County District Court
File No. K7930960

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Daniel C. Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue South, Minneapolis, MN 55404 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant appeals from the revocation of his probation, alleging that he was denied the right-to-counsel, that his violation did not merit a revocation, and that he was improperly sentenced. We modify his sentence for a gross misdemeanor order-for-protection violation to run concurrently with his felony sentences and affirm in all other respects.

FACTS

Upon dissolution of his marriage, appellant Mostafa David Ghalichi admitted that he repeatedly abused his wife, E.S., physically and emotionally. On January 3, 1993, Ghalichi held E.S. at gunpoint in the bedroom of their Burnsville home for several hours, threatening to kill her if she did not confess to having had a clandestine meretricious affair with a co-worker. The next day, Ghalichi forced E.S. to leave work early and again demanded her confession. Over a four-day period in February 1993, Ghalichi made multiple phone calls to the co-worker he suspected of having an affair with his wife. During those calls, Ghalichi threatened to kill him.

Ghalichi was charged with three counts of terroristic threats and pleaded guilty to the first and third counts in exchange for dismissal of the second. Pursuant to the plea agreement, the district court stayed imposition of sentence and placed Ghalichi on probation for five years. Among the conditions of probation was that Ghalichi have no contact with the victims or their families except upon approval by his probation officer. The district court judge explained: "That means direct or indirect [contact]. You can't telephone. You can't write them. You can't have somebody else contact them."

In February 1994, Ghalichi, who was then represented by counsel, admitted to violating the no-contact provision by leaving a message on E.S.'s answering machine asking her to reconcile with him. He received a 77-day jail sentence and his probation was reinstated. In August 1996, Ghalichi admitted to a second violation for telephoning E.S.'s brother to ask him to bring Ghalichi's and E.S.'s son, to a local park without telling E.S. Ghalichi had refused to exercise supervised visitation at the county Child Safety Center as required by the dissolution decree. Ghalichi, who appeared pro se, was sentenced to 90 days in jail and warned that an additional violation could result in imprisonment. Ghalichi was also twice convicted in separate proceedings of violating E.S.'s order for protection against him.

On February 6, 1997, Ghalichi's probation officer filed a third probation violation report based on allegations that Ghalichi had repeatedly contacted E.S.'s attorney. The attorney testified that he had been "deluged" with telephone calls, letters and faxes from Ghalichi seeking contact with E.S. Ghalichi called his office 198 times in a 27-day period and also called him at home; among Ghalichi's requests were that the attorney forward a letter to E.S., urging her to attend joint counseling sessions, that he set up a meeting in his office to allow Ghalichi to propose marriage to E.S., and that he ask E.S. to meet Ghalichi for midnight mass on Christmas Eve so "she could confess her sins" and Ghalichi could propose to her. The court consolidated the probation revocation hearings for Ghalichi's felony terroristic threats convictions and his gross misdemeanor order for protection violation.

Ghalichi appeared pro se at the hearing, at which the following exchange occurred:

THE COURT: Let me say this. This is what this is all about. And it's pretty simple. It's about this.

(His Honor goes to the courtroom board and begins writing on the board.)

It's about one word. No. Everybody said no! Don't call her. No, don't contact her attorney. No, don't do it this way. My question is, and I just can't figure it out, if everybody is saying no, why are you saying yes? That's what I can't understand.

* * * 

THE DEFENDANT: I will say no from now on in one condition.

THE COURT: There are no conditions! There are no conditions! You have been sentenced by two judges of this court and they both gave you this word. And the only condition they gave you is that [the probation officer] decides whether that condition should change.

Ghalichi then promised that he would "not in any way, shape, or form contact [E.S. or] her attorney," "never continue any harassment or anything that they perceive to be harassment from this day forward," and "not contact anybody in this room * * * ever again until my son is 18 years old." Reasoning that if it executed Ghalichi's full sentence there would be no way to prevent Ghalichi from contacting E.S. upon release, the district court imposed a sentence of 180 days for the order for protection violation with 90 days stayed and reinstated Ghalichi's probation, specifically reiterating the condition that Ghalichi have no "direct or indirect" contact with E.S.

In May 1997, Ghalichi faxed E.S.'s attorney a request to drop the order for protection; he also asked the probation officer to ask E.S. to drop the order. Between August and December 1997, Ghalichi made more than 50 telephone calls to the attorney requesting a private conversation with E.S. or that he ask E.S. to attend joint counseling sessions. He testified that Ghalichi regularly called him ten times per day and on one day called him 24 times. The probation officer testified that Ghalichi also began calling her one to ten times per day requesting that she ask E.S. to give Ghalichi permission to speak with her. The probation officer repeatedly told Ghalichi that he could not contact E.S.'s attorney and that she considered his efforts to persuade her to contact E.S. to be probation violations.

The probation officer filed a fourth probation violation report on January 30, 1998 recommending that Ghalichi be given consecutive executed sentences of 15 and 12 months for terroristic threats. At his admit/deny hearing on March 12, 1998, Ghalichi appeared pro se. After denying Ghalichi's motion to dismiss the violation charges, the district court stated that Ghalichi had three choices: "one, admit; two, deny and put it on for a contested hearing; three, [request] a continuance of one week for you to seek counsel, either the public defender or private." Ghalichi then attempted to argue the merits of the petition, and the court on its own motion continued the case for one week to allow Ghalichi to retain an attorney, cautioning both parties that it was "not going to continue that date." The next day, Ghalichi moved for a continuance for an unspecified period of time; the district court denied the motion.

Appearing pro se at the evidentiary hearing, Ghalichi testified that his efforts were directed at securing visitation with his son, whom he still refused to visit at the Child Safety Center. The district court found this claim to be pretextual and concluded that Ghalichi had violated both the no-contact provision of his probation and the condition that he follow the rules established by the probation officer. The district court then imposed consecutive sentences of 15 months and 12 months for the two counts of terroristic threats and also ordered that the remaining 90 days on the sentence for the order for protection violation run consecutive to the terroristic threats sentences. This appeal followed.

D E C I S I O N

I. Right to Counsel

Ghalichi argues that the district court did not properly inform him about his right to counsel, relying on State v. Murray, 529 N.W.2d 453, 455 (Minn. App. 1995). In Murray, the defendant was told that if he denied the allegations of the probation violation petition, he had a right to a hearing and to an attorney at that hearing; this court reversed because the defendant had not been informed that he also had the right to an attorney if he wished to admit the allegations but argue mitigating circumstances to prevent his incarceration. Id. Here, Ghalichi was not told that he had the right to counsel only if he denied the petition; rather, he was informed that he had the right to obtain counsel for any purpose, as long as he did so within one week. When Ghalichi did not immediately announce his choice, the court on its own motion granted a continuance, thus erring on the side of preserving Ghalichi's right to counsel. We conclude that Murray is distinguishable and that the district court did not fail to properly inform Ghalichi of his rights.

Ghalichi also contends that the court violated his right to counsel by denying his request for an additional continuance. The denial of a motion for a continuance to obtain substitute counsel is reviewed only for an abuse of discretion, and this court considers "whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial." State v. Vance, 254 N.W.2d 353, 358-59 (Minn. 1977). This court has applied a similar abuse of discretion standard to the denial of a motion for a continuance where the defendant ultimately proceeded pro se. State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996).

Ghalichi received less time between his initial hearing and the evidentiary hearing than did the defendant in Balma, but he also had more than a month to obtain counsel between service of the summons on February 5 and the initial hearing on March 12. Probation revocation is an expedited proceeding; if Ghalichi had been in custody, the court would have been required to hold a hearing within seven days. Minn. R. Crim. P. 27.04, subd. 2(4). Under Balma, the district court was entitled to condition Ghalichi's right to counsel upon its exercise before a set date; we conclude that under the circumstances of this case, the one-week deadline was not an abuse of discretion.

As to the issue of prejudice, Ghalichi was undoubtedly aware of his right to counsel as a result of his three previous violation hearings. He was also aware from the probation violation report, which he had to have received in order to know the nature of the violation with which he was charged, that the state sought consecutive felony sentences. On the facts of this case, it is difficult to imagine what argument could have been made that Ghalichi's dozens of calls and faxes to E.S.'s attorney, in direct contravention of the district court's order, were not clear violations meriting imprisonment. We conclude that a further continuance would not have materially affected the outcome of the proceeding and that Ghalichi was not unconstitutionally deprived of his right to counsel.

II. Probation Violation

A district court's decision to revoke probation is reviewed for a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). In order to revoke probation, the 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 the need for confinement outweighs the policies favoring probation." Id. at 250. If the court fails to make explicit findings, however, this court will nevertheless uphold the revocation if the record otherwise supports it. State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989).

Ghalichi's primary argument is that his contacts with the probation officer were not in violation of any court order. But we do not need to decide this issue because Ghalichi's counsel conceded at oral argument that Ghalichi violated his probation by contacting E.S.'s attorney. E.S.'s attorney submitted into evidence a thick file of faxes and transcriptions of voice-mail messages that he received from Ghalichi after the February 1997 hearing in which the district court had unambiguously ordered Ghalichi not to contact E.S.'s attorney. Ghalichi made no attempt to dispute the authenticity or accuracy of these documents. There is more than sufficient evidence to support the district court's finding that Ghalichi violated his probation.

The next inquiry is whether the violation was intentional and inexcusable. The contacts were plainly intentional, and in view of the district court's repeated admonitions against contact with E.S.'s attorney at Ghalichi's third probation violation hearing, Ghalichi's numerous promises at the same hearing not to contact him, and the sheer number of contacts, the record clearly supports a conclusion that the violation was inexcusable.

Revocation of probation is appropriate where "confinement is necessary to protect the public from further criminal activity by the offender" or where "it would unduly depreciate the seriousness of the violation if probation were not revoked." Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (1970)). Ghalichi's blatant disregard of the court's prohibition on contact with Haugh, following his long history of ignoring the district court's order that he not attempt to indirectly contact E.S., supports a conclusion that Ghalichi would continue to violate his probation if not confined. The seriousness of the violation is underscored by Ghalichi's history of abuse of E.S., by his three previous violations, and by the fact that the present violation comprised over 50 separate contacts, each forbidden by court order. The district court plainly did not abuse its discretion in concluding that "there needs to be accountability" and accordingly revoking Ghalichi's probation.

III. Sentencing

Ghalichi's plea agreement in the terroristic threats case called for a stay of imposition of sentence. At the sentencing hearing, the district court accordingly stated, "I'm going to stay imposition of sentence, place you on probation for a period of five years on each of those counts concurrent." Ghalichi argues that by using the word "concurrent," the district court intended that any sentences imposed run concurrently and that the district court was therefore not free to run the sentences consecutively upon imposition. We disagree.

Where two sentences are imposed, it is presumed that they will run concurrently if the court does not specify otherwise. Minn. Stat. § 609.15, subd. 1 (1996). Because the United States Constitution forbids resentencing to an increased term, a court may not order that two sentences that have been imposed, but whose execution has been stayed, be served consecutively at the time the stay of execution is revoked. See, e.g., State v. Isaacson, 409 N.W.2d 291, 293 (Minn. App. 1987). But a stay of imposition is not the same as a stay of execution. "When a stay of imposition is given, no sentence length is pronounced, and the imposition of the sentence is stayed to some future date." Minn. Sent. Guidelines cmt. II.C.04. "Until the stay is vacated, and sentence imposed, there is no sentence of imprisonment." State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985). Therefore, because the court revoking the stay is the first court to actually sentence the defendant for the offense, it may order that the sentence be served consecutively to a sentence imposed for an intervening offense. Id.

In context, the district court's use of the word "concurrent" plainly refers to the terms of probation rather than to whatever sentences might ultimately be imposed. And as a matter of law, the district court could not have made Ghalichi's sentences consecutive because, under Stafford, no sentences were imposed and therefore none existed. Although Stafford and this court's other published cases on the subject involve situations where a stay of imposition was revoked on only one sentence, rather than two, that case also articulates a policy that

[t]he option of consecutive sentencing should be reserved to the judge last sentencing the defendant, who is in the better position to determine whether consecutive sentencing is justified.

Id. As with the sentence imposed in Stafford, Ghalichi's sentences may be made consecutive upon imposition without a departure from the sentencing guidelines. See Minn. Sent. Guidelines II.F. ("[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other").

In contending that the district court lacked authority to impose consecutive sentences, Ghalichi relies on State v. Braun, 487 N.W.2d 232 (Minn. 1992). But in Braun, the district court had stayed imposition of a sentence and then imposed, but stayed the execution of, a second sentence whose length was calculated under the method approved in State v. Hernandez, 311 N.W.2d 478 (Minn. 1981). Braun, 487 N.W.2d at 233. The Hernandez method may be used only for concurrent sentences, and the supreme court therefore concluded that the first sentencing court had made the sentences concurrent and that the court revoking the stays lacked the authority to make the sentences consecutive. Id. at 234. Because the Braun decision is based on the unique requirements of sentencing under the Hernandez method, we conclude that it does not control the instant case and that, where no sentences were imposed for either of two felony offenses, the district court had the authority to order upon imposition that the two sentences be served consecutively.

The state concedes Ghalichi's argument that the district court did not have authority to make the sentence for the gross misdemeanor order for protection violation, which had been subject to a stay of execution rather than of imposition, consecutive to Ghalichi's felony sentences. We therefore modify the sentencing order to provide that the remaining 90 days of the gross misdemeanor sentence will run concurrent with the 27-month aggregate felony sentence.

Affirmed as modified.

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