Richard A. Fick, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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

A03-510

 

Richard A. Fick, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 23, 2003

Affirmed

Harten, Judge

 

Goodhue County District Court

File Nos. K2-02-1505; J3-00-50211; K3-02-111; J8-00-50199

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, 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

 

Stephen N. Betcher, Goodhue County Attorney, Erin L. Kuester Schmickle, Assistant County Attorney, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            On appeal from the denial of his petition for postconviction relief, appellant argues that the district court's extended jurisdiction juvenile (EJJ) disposition should have committed appellant to a juvenile facility instead of committing him to an adult treatment facility.  Because the postconviction court did not abuse its discretion in denying appellant's petition, we affirm.

FACTS

            Appellant Richard A. Fick was born on 13 May 1982.  At age 18, he was adjudicated an EJJ and delinquent for having committed at age 17 one count of first-degree and one count of third-degree criminal sexual conduct.  The district court sentenced appellant to consecutive terms of 86 and 28 months imprisonment but stayed execution by placing him on probation with conditions including that he complete outpatient sex- offender treatment.

            Approximately two months later, appellant violated probation by having contact with a female under 18; his probation was continued with an additional condition that he serve one weekend of detention at the Dakota County Juvenile Services Center.  A month after this incident, appellant again violated probation by committing petty theft.  The district court continued appellant's probation and ordered him to complete three days of sentence-to-service.  Several months later, appellant's outpatient treatment provider recommended that the district court consider inpatient treatment.

            Appellant was ordered to complete a residential sex-offender treatment program at Alpha House.  Ten months into treatment, appellant violated probation by failing to abide by Alpha House rules.  The district court continued appellant's probation on condition that he serve 90 days in the Goodhue County Jail, then return to Alpha House.  Approximately four months after his return to Alpha House, appellant, then age 20, absconded without having completed the program.  Following a contested probation violation hearing, the district court revoked appellant's probation and executed his stayed sentences.

            Appellant filed a petition for postconviction relief, alleging that because Alpha House was not a lawful placement, his probation should not have been revoked as a result of his failure to complete the program.  The postconviction court denied appellant's petition without a hearing.  This appeal followed.

D E C I S I O N

Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Decisions of a postconviction court will not be disturbed absent an abuse of discretion.  King v. State, 649 N.W.2d 149, 156 (Minn. 2002).

Petitioners seeking postconviction relief must allege facts that, if proven by a preponderance of the evidence, entitle them to relief.  Paone v. State, 658 N.W.2d 896, 899 (Minn. App. 2003).  The allegations "must be more than argumentative assertions without factual support."  Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).  A postconviction court must hold a hearing unless the petition, files, and record show that the petitioner is entitled to no relief.  King, 649 N.W.2d at 156.  Evidentiary hearings are required when material facts are in dispute that must be resolved in order to reach the issues raised on the merits.  Ferguson, 645 N.W.2d at 446.  Doubts as to whether to hold an evidentiary hearing should be resolved in favor of the party seeking a hearing.  McKenzie v. State, 670 N.W.2d 582, 583 (Minn. 2003).  Appellant claims that the postconviction court erroneously denied his petition for relief because his placement in Alpha House was inappropriate and that his failure to complete its program should have led to placement in another treatment facility rather than execution of his adult sentences.

            District courts have broad discretion in setting the terms and conditions of probation.  State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  Alpha House is a treatment facility for adults.  Appellant claims that he was programmed for failure by his placement in a facility for mature adults convicted of a range of sexual offenses.  But appellant did not begin the inpatient program at Alpha House until he was an adult, almost age 19.  Appellant has not shown that the district court abused its discretion by placing him at Alpha House.

            District courts also have broad discretion in determining whether to revoke probation and execute a sentence.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The determination to execute a stayed sentence will not be reversed absent a clear abuse of discretion.  Id. at 250.  To revoke probation, a district court must make findings that "(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.; see State v. B.Y., 659 N.W.2d 763, 768 (Minn. 2003) (applying Austin factors to EJJ proceedings).  In the EJJ context, district courts must consider all the circumstances of the juvenile prior to executing the stayed adult sentence.  B.Y., 659 N.W.2d at 772.  The district court found that appellant violated probation by failing to complete inpatient treatment at Alpha House, that his violation was intentional, and that all less restrictive alternatives had been exhausted.  The record supports these findings.

Appellant claims that he could have been placed in the program at Minnesota Correctional Facility-Red Wing (MCF-Red Wing) after he was terminated by Alpha House.  But the district court found that appellant was no longer amenable to juvenile sex offender treatment, a finding based on the testimony of the director of Alpha House.  The director recommended that appellant not be placed in any program that would allow him to be in contact with minors because appellant "has a tendency to ingratiate himself with vulnerable individuals to get something out of them."  The postconviction court found that appellant did not dispute facts supporting his unamenability to further treatment, nor does he dispute them on appeal.

Appellant argues that, because the purpose of EJJ designation is to provide "one last chance" for juveniles to be successful in the juvenile system, his probation should not have been revoked.   But the postconviction court determined that appellant "was afforded several ‘last chances.'"  It executed his sentence "only when no options for treating [appellant's] sexual deviance remained in the juvenile system and allowing [appellant] to remain on probation without treatment would pose a great risk to the community."

            Finally, appellant claims that the nonviolent nature of his criminal sexual conduct also supports his arguments that Alpha House was not an appropriate placement and that his probation should not have been revoked.  He relies on State v. Krotzer, 548 N.W.2d 252, 255 (Minn. 1996).  But the relevant mitigating factors in determining whether probation should be revoked are those relating to the probation violation, not the original offense.  B.Y., 659 N.W.2d at 769-70.  In addition, appellant's reliance on Krotzer is misplaced: Krotzer determined that an order to stay adjudication did not violate constitutional separation of powers, but did not reach the merits of the stay.  Krotzer, 548 N.W.2d at 254-55.

            Because appellant failed to allege any facts that would warrant relief, we conclude that the postconviction court did not abuse its discretion in denying appellant a hearing and in rejecting his petition for an order vacating the revocation of probation and the execution of his sentences.

            Affirmed.