State of Minnesota, Respondent, vs. John Douglas Iron Necklace, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-554

 

State of Minnesota,
Respondent,
 
vs.
 
John Douglas Iron Necklace,
Appellant.

 

Filed September 30, 2003

Affirmed

Wright, Judge

 

Mille Lacs County District Court

File No. K2-92-423

 

 

John M. Stuart, State Public Defender, Cathryn Young Middlebrook, 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

 

Janice S. Kolb, Mille Lacs County Attorney, Cory Tennison, Assistant County Attorney, Courthouse Square, 635 Second Street, S.E., Milaca, MN  56353 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from the district court's revocation of probation on appellant's sentence for first-degree criminal-sexual conduct, appellant argues that the district court abused its discretion because it did not consider mitigating factors, such as completion of sex-offender and chemical-dependency treatment.  We affirm.

FACTS

 

On August 3, 1992, appellant John Douglas Iron Necklace pleaded guilty to one count of first-degree criminal-sexual conduct,in violation of Minn. Stat. § 609.342, subd. 1(g), 2 (1990).  In exchange for appellant's guilty plea, the state agreed to recommend a dispositional departure from the presumptive executed sentence of 86 months.  The district court honored the plea agreement, imposed a sentence of 86 months, stayed its execution, and placed appellant on probation for 20 years.  Two conditions of appellant's probation were (1) that he have no contact with minors unless approved by his probation officer and (2) that he report to his probation officer for monthly appointments.  During the eleven years of his probation, appellant has been supervised by probation officers in Mille Lacs County and Hennepin County.

            Appellant has violated the conditions of his probation on several occasions.  The firstprobation violation occurred in 1995, when appellant admitted having contact with the victim, his daughter.  The district court reinstated appellant's probation, reiterating that appellant was prohibited from having any contact with minors without prior approval from his probation officer.  In 1996, appellant was permitted to have contact with his daughter, but contact with other minors without prior approval remained proscribed.  In 1999, appellant violated his probation when he was convicted of aggravated driving while under the influence.  Again the district court declined to execute appellant's sentence.  In 2001, appellant violated his probation by failing to maintain contact with his Hennepin County probation officer and was permitted to remain on probation. 

In October 2002, appellant again failed to maintain contact with his probation officer and a warrant was issued for appellant's arrest.  When the warrant was executed, appellant was found in a hotel room with his fiancée, his daughter, and his three-year old grandson.  Immediately prior to his arrest, appellant was alone in the room with his grandson while his daughter and fiancée spoke briefly with the arresting officer. 

In his testimony at the probation-revocation hearing, appellant admitted having unauthorized contact with his grandson.  Appellant testified that he understood the no-contact order but believed contact with his grandson "was okay because [my fiancée] was with me."  Appellant also testified that he understood that maintaining contact with his probation officer was a condition of his probation and admitted his failure to do so.  The district court revoked appellant's probation and committed him to the custody of the Commissioner of Corrections for 86 months.  This appeal followed. 

D E C I S I O N

 

If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed.  Minn. Stat. § 609.14, subd. 1(a) (2002).  "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).  To revoke probation, the district court must (1) designate the specific conditions that were violated; (2) find that the violation was intentional and 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 in revoking his probation.  After receiving evidence of the conditions that were violated, which included appellant's admissions, the district court found that appellant failed to maintain contact with his probation officer and had contact with his minor grandson without his probation officer's permission.  Thus, the district court satisfied the first requirement for revocation. 

Appellant argues that the district court erred in finding that his violations were intentional and inexcusable because (1) a dental appointment in Mille Lacs County caused him to miss his meeting with the Hennepin County probation officer, (2) the probation officer was misinformed that appellant had changed his residence, and (3) the contact with his minor grandson without his probation officers' approval was in the presence of others except for the minimal contact he had alone with his grandson prior to his arrest.  This argument is unavailing.

The record establishes that appellant has expressed his understanding of the conditions of his probation on numerous occasions.  For example, at the revocation hearing, the district court read from the transcript of the 1995 revocation hearing during which appellant indicated he understood the extent of the no-contact condition.  The district court also noted that, at the 2002 revocation hearing, all of the terms of appellant's probation were again reviewed in some detail.  The district court found it immaterial whether appellant believed supervised contact with his grandson was permissible because the probation officer did not authorize any contact with the minorsupervised or unsupervised.  In rejecting appellant's excuses for violating the probation conditions, the district court found that appellant lacked credibility.  We defer to the district court's credibility determination, see State v. Lopez, 379 N.W.2d 633, 638 (Minn. App. 1986) (stating that the district court is in the best position to judge credibility), review denied (Minn. Feb. 14, 1986), and conclude that the record supports the district court's determination that appellant's violations were intentional and inexcusable.    

            Appellant next argues that, in concluding that the need for confinement outweighs the policies favoring probation, the district court failed to consider continued probation as an option.  Appellant contends that his progress in treatment shows his continued amenability to probation. 

In Austin, the Minnesota Supreme Court stated that

[t]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. . . . The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.

 

295 N.W.2d at 250-51 (quotations and citation omitted).  The Minnesota Sentencing Guidelines urge "[l]ess judicial forbearance . . . for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history."  Minn. Sent. Guidelines III.B. 

As to this factor, the district court stated:

[T]his is a criminal sexual conduct in the first degree which really warranted a commit back in 1992.  We attempted to go this other route. . . .[A]t this time I see no other alternative.

 

. . . .

 

The need for confinement outweighs the policy favoring probation, and, quite frankly, if I'm not mistaken, initially in this case probation was not th[e] favored approach. . . . [T]o continue probation would be inconsistent for the protection of the public and further criminal activity by the offender. . . . [I]t would unduly depreciate the seriousness of a conviction of a criminal sexual conduct in the first degree . . . with this . . . fourth violation of two substantial and material portions of the sentence designed to protect public safety.

 

. . . .

 

I have actually no faith at this point in time that if we attempted probation an additional time that Mr. Iron Necklace would either let his whereabouts be known, or that he would avoid . . . contact with a minor child.  And again, this is his second violation of that provision during [his] probationary period. 

 

            While the record establishes that appellant has completed all the tests and treatments that were probation conditions, the record also establishes that he has repeatedly violated the probation condition requiring him to maintain contact with his probation officers.  The record also demonstrates appellant's understanding and conscious disregard for the condition prohibiting "contact with any minors unless approved by [an] agent."  Moreover, appellant was convicted of first-degree criminal-sexual conduct involving his twelve-year-old daughter, a severe offense for which the Minnesota Sentencing Guidelines and Austin sanction less judicial forbearance.  Id.; Austin, 295 N.W.2d at 251 (stating that revocation is appropriate if "it would unduly depreciate the seriousness of the violation if probation were not revoked").  Here, the district court's decision to revoke probation was not the result of "a reflexive reaction to an accumulation of technical violations."  Austin, 295 N.W.2d at 251.  Rather, the decision was based on ample evidence that appellant "cannot be counted on to avoid antisocial activity."  Id.  The district court's conclusion that policies favoring probation do not outweigh the interest in revoking appellant's probation is well founded. 

Because the district court did not abuse its discretion in revoking appellant's probation, we affirm. 

Affirmed.