State of Minnesota, Respondent, vs. Thang Van Tran, Appellant.

State of Minnesota, Respondent, vs. Thang Van Tran, Appellant. A06-1030, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and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

A06-1030

 

State of Minnesota,

Respondent,

 

vs.

 

Thang Van Tran,

Appellant.

 

 

Filed August 21, 2007

Affirmed Willis, Judge

 

Stearns County District Court

File No. K2-97-1504

 

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

 

Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN  56303 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court's decision to revoke his probation, arguing that the successful completion of chemical-dependency treatment was not a condition of his probation and that the district court abused its discretion when it determined that appellant's probation violations were intentional and that the need for confinement outweighs the policies favoring probation.  We affirm.

FACTS

In April 1997, appellant Thang Van Tran was charged with one count of first-degree criminal sexual conduct for engaging in sexual intercourse with a child under the age of 13.  Tran pleaded guilty to the charge under a plea agreement that provided that the imposition of Tran's sentence would be stayed for 30 years on the conditions that Tran serve 45 days in jail; pay restitution, extradition costs, and a $3,500 fine; complete a sex-offender treatment program; have no contact with gang members; "not . . . frequent any establishments in which minors are known to appear"; and have no contact with the victim.

  On July 30, 2002, Tran was convicted of fifth-degree domestic assault.  The district court lifted the stay of imposition of Tran's sentence on the 1997 charge and imposed a sentence of 86 months' imprisonment, but the district court stayed the sentence subject to the conditions that Tran serve an additional 30 days in jail, abstain from mood-altering chemicals, submit to random drug testing, and complete any programming required by his probation agent.

In 2004, Tran violated the conditions of his probation by using illegal drugs and missing a scheduled urinalysis.  As a result, the district court executed 90 days of Tran's sentence, staying the remainder of the sentence on the condition that Tran complete a chemical-dependency assessment and follow all recommendations of that assessment.  In 2005, Tran again violated the conditions of his probation by using methamphetamine and failing to maintain contact with his probation agent, and the district court executed an additional 25 days.

In November 2005, court services alleged that Tran violated the conditions of his probation by failing to follow the recommendations of the chemical-dependency assessment and by failing to maintain regular contact with his probation agent as directed.  Tran denied the allegations, and on January 26, 2006, a probation-revocation hearing was held.

At the hearing, Tran's probation agent testified that in July 2005, Tran completed a chemical-dependency assessment that recommended outpatient chemical-dependency treatment.  The agent testified that although Tran began treatment, he stopped attending in October 2005.  The probation agent testified that Tran called him in December 2005 and left a message telling the agent that Tran was having difficulty paying for treatment.  In addition, the probation agent testified that Tran had been instructed to visit the probation agent's office every Monday, Wednesday, and Friday but that he stopped doing so in November 2005.  Tran denied that he failed to maintain contact with his agent, testifying that he called the agent "two or three times" to tell the agent that Tran had been unable to pay for the chemical-dependency treatment.

The district court found that Tran intentionally violated the conditions of his probation by failing to complete chemical-dependency treatment, noting that it "[w]ould have been [Tran's] responsibility [after being terminated from the program] to ensure that he got back into another program and he's failed to do that."  The district court also determined that Tran intentionally violated a condition of his probation by failing to maintain regular contact with his agent, noting that "[t]o make a phone call in December and then wait months without hearing from his agent would be a violation" of the conditions of his probation.  Because Tran "was well aware of . . . the terms of his probation and he [still] violated those terms," and because of Tran's lengthy record of violations, the district court determined that the need for confinement outweighs the policies favoring probation.  The district court revoked the stay of execution and committed Tran to prison for 86 months.  This appeal follows.

D E C I S I O N

Tran argues that the district court abused its discretion by finding that he violated the conditions of his probation.  A district court has broad discretion in determining whether there is sufficient evidence to revoke probation, and we will not reverse the district court unless it abuses that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Before revoking probation, a district court must identify the conditions of probation that the defendant violated, find that the defendant's violations of those conditions were intentional or inexcusable, and determine that the need for confinement outweighs the policies favoring probation.  Id. at250.  Whether the district court made the findings necessary to revoke probation is a question of law.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). 

Tran argues first that he did not violate the conditions of his probation because "[t]he requirement that [Tran] complete the treatment program was imposed by the recommendation of the Rule 25 evaluation and was not expressly imposed by the court."  Before a probation violation can occur, "the condition alleged to have been violated must have been a condition actually imposed by the court."  State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004).  Imposing the conditions of probation is exclusively a judicial function and cannot be delegated to executive-branch employees.  State v. Henderson, 527 N.W.2d 827, 829 (Minn. 1995).

Tran relies on the Minnesota Supreme Court's decision in Henderson to argue that the district court improperly delegated sentencing authority to his chemical-dependency counselor when the district court required Tran to have a chemical-dependency assessment and follow all recommendations of that assessment.  In Henderson, while the defendant was serving a one-year probationary jail sentence, he was told that the Corrections Department was enrolling him in a "Special Supervision Program," which imposed several restrictions on the defendant, including a curfew, a "24-hour accountability" requirement, and multiple face-to-face meetings.  Id. at 828.  The supreme court held that the "Special Supervision Program" was an intermediate sanction under Minn. Stat. § 609.135 and that only a district court may impose an intermediate sanction.  Id. at 829; see Minn. Stat. § 609.135 (2006).

The requirement that a defendant participate in chemical-dependency treatment is defined in section 609.135 as an intermediate sanction.  Minn. Stat. § 609.135, subd. 1(b).  Thus, the district court has the exclusive authority to impose chemical-dependency treatment as a condition of probation.  See Henderson, 527 N.W.2d at 829.  But Henderson drew a distinction between imposing a condition of probation and the administrative implementation of that condition, noting that "trial judges should not be burdened with administrative issues relating to the implementation of conditions of probation."  Id. And the supreme court has determined that establishing the "appropriate levels of probation supervision" may be properly delegated to a probation agent.  Id.

The district court may not have expressly identified the exact requirements of Tran's chemical-dependency treatment (i.e., inpatient versus outpatient, group therapy versus individual sessions, etc.), nor did the district court use the words "chemical-dependency treatment" when it imposed the condition.  But when the district court imposed the condition that Tran complete a chemical-dependency assessment and follow all recommendations, it imposed as a condition of Tran's probation that he successfully complete any recommended treatment.  See id. (noting that "some flexibility in the administrative implementation of probation conditions is desirable").  The chemical-dependency assessment was part of the administrative implementation of the condition, namely, identifying what treatment, if any, was appropriate for Tran.  We conclude that this was not an improper delegation of the district court's sentencing authority.

 But even if the successful completion of chemical-dependency treatment was not imposed as a condition of Tran's probation, failure to complete that treatment was not Tran's only violation:  the district court found that Tran also violated a condition of his probation by failing to maintain regular contact with his probation agent.  And at the probation-revocation hearing, Tran's probation agent testified that Tran stopped maintaining regular contact with him in November 2005.  Thus, we conclude that the record supports the district court's determination that Tran violated the conditions of probation.

Tran argues next that the evidence is insufficient to find that he intentionally violated the conditions of his probation.  See Austin, 295 N.W.2d at 250 (Minn. 1980) (requiring that to revoke probation, the district court must determine that a defendant's violation of the conditions of his probation was intentional or inexcusable).  We disagree.  Although Tran testified at the probation-revocation hearing that he attempted to contact his probation agent several times, the probation agent testified that after November 2005, Tran stopped maintaining regular contact with him.  It is the district court's prerogative to credit the testimony of the probation agent over that of Tran.  See State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985).

Tran contends finally that the district court abused its discretion by finding that the need for confinement outweighs the policies favoring probation, arguing that his probation violations do "not indicate that he was a danger to commit any further criminal or anti-social acts."  When determining whether the need for confinement outweighs the policies favoring probation, the district court must consider whether confinement is necessary to protect the public safety.  Austin, 295 N.W.2d at 251 (citing ABA Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).  The record shows that beginning in 2002, Tran violated the conditions of his probation on numerous occasions, including testing positive for methamphetamine and being convicted of fifth-degree domestic assault.  Given these repeated failures to abide by the conditions of his probation, the district court's determination that the need for confinement outweighs the policies favoring probation was not an abuse of discretion.  See id. (noting that determination of the need for confinement must result from a showing that the defendant's past behavior demonstrates that he cannot be relied on to abide by the conditions of his probation).

Affirmed.