State of Minnesota, Respondent, vs. Richard Daher, Appellant.

State of Minnesota, Respondent, vs. Richard Daher, Appellant. A06-1668, Court of Appeals Unpublished, August 14, 2007.

This opinion will be unpublished and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

A06-1668

 

State of Minnesota,
Respondent,
 
vs.
 
Richard Daher,
Appellant.

 

 

Filed August 14, 2007

Affirmed

Peterson, Judge

 

 

Ramsey County District Court

File No. K5-03-4317

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3097 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge. *

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order revoking his probation and imposing an executed prison sentence, appellant Richard Daher argues that the district court abused its discretion in revoking his probation without sufficient evidence that the need for confinement outweighed the policies favoring probation.  We affirm.

FACTS

            Following an October 15, 2003 incident in which appellant hit another person with a tire iron, appellant was charged with one count of second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2002); and one count of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2002).   On February 17, 2004, pursuant to a plea agreement, appellant pleaded guilty to third-degree assault, and the second-degree-assault charge was dismissed.  The district court stayed imposition of sentence and placed appellant on probation for five years.  As conditions of probation, appellant was required to perform community service, complete anger-management counseling, and remain law-abiding.   

            On August 19, 2004, appellant pleaded guilty to a fifth-degree controlled-substance charge involving the possession of methamphetamine on August 4, 2004.  The district court stayed execution of the 13-month sentence on the drug charge on condition that appellant serve 30 days in the county workhouse; undergo a chemical-health assessment and follow all recommendations and aftercare; abstain from using alcohol and non-prescription, mood-altering substances; submit to random urinalysis and breath tests; and remain law-abiding. 

            After sentencing appellant for the controlled-substance conviction, the district court held appellant's first probation-revocation hearing with respect to the February 17, 2004 assault conviction.  Appellant admitted that he violated his probation in the assault case by not remaining law-abiding, and the district court ordered appellant to serve 30 days as a consequence.  The district court continued appellant's probation in the assault case and added as a condition of probation that appellant abstain from using all alcohol and non-prescribed, mood-altering substances.  The district court also warned appellant that the stay of imposition would be vacated if appellant violated the conditions of probation again. 

            On May 25, 2006, appellant's probation officer recommended to the district court that the stay of imposition be vacated based on four allegations:

1.         [Appellant] has failed to remain law-abiding, by pleading guilty to Gross Misdemeanor-DWI, Second Degree (DOO: 7/1/05) in Hennepin County on 1/25/06.

2.         [Appellant] has failed to abstain from the use of alcohol on or about 5/17/06.

3.         [Appellant] has failed to report his arrest in Anoka County on 5/17/06 for Felony-DWI, First Degree and Gross Misdemeanor-[Driving after Cancellation-Inimical to Public Safety] to Probation.

4.         [Appellant] has failed to report his arrest in Crow Wing County on 1/1/06 for Gross Misdemeanor-[Driving after Cancellation-Inimical to Public Safety] to Probation. 

 

            At the probation-revocation hearing, the second allegation was amended by deleting the reference to a specific date on which appellant failed to abstain from using alcohol, and appellant admitted all of the allegations.  The district court found that appellant's probation violations were intentional and inexcusable, that appellant is a danger to public safety, that appellant had not shown amenability to probation supervision, and that the need for incarceration outweighed the advantages and the policies favoring probation.  The district court vacated the stay of imposition of sentence, imposed a sentence of one year and one day for the assault conviction, and ordered that the sentence be executed.  This appeal followed.

D E C I S I O N

            "A district 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. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quotation omitted).  "When revoking probation, the district 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 need for confinement outweighs the policies favoring probation.'" State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (quoting State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980)).

            With respect to the third Austin factor, the supreme court has explained

that policy considerations may require that probation not be revoked even though the facts may allow it and that the purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.  When determining if revocation is appropriate, courts must balance the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety, and base their decisions on sound judgment and not just their will.

 

Modtland, 695 N.W.2d at 606-07 (quotations omitted).

            Appellant argues that "the [district] court abused its discretion in revoking his probation without sufficient supporting evidence that the need for confinement outweighed the policies favoring probation."  Appellant contends that although he failed to remain law-abiding, the DWI conviction that he admitted concerned his alcohol abuse, not a crime of intentional violence like the assault offense for which he was originally placed on probation.  Appellant contends further that treatment should have been tried before confinement in prison and because treatment was not sufficiently tried, confinement was not really ordered as a last resort. 

            But in October 2004, as a condition of probation for a controlled-substance offense, appellant was ordered to undergo a chemical-health assessment and follow all recommendations and aftercare.  At that time, the district court also added as a condition of probation in appellant's assault case that appellant abstain from using all alcohol and non-prescribed, mood-altering substances.  Appellant did not abide by these conditions and instead intentionally used alcohol and drove while intoxicated.  This conduct posed a threat to public safety similar to a crime of intentional violence.  In light of appellant's repeated violations of the conditions of his probation, the opportunity to obtain treatment that appellant has had since being ordered in October 2004 to undergo a chemical-health assessment, and the threat to public safety created by appellant's alcohol abuse, the district court did not clearly abuse its discretion in determining that there is sufficient evidence to revoke appellant's probation.

            Affirmed.

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