Ramsey County District Court File No. 62-CR-11-2538.
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Peterson, Presiding Judge; Chutich, Judge; and Smith, Judge.
On appeal from an order revoking his probation, appellant Robert Sterling Allison argues that the district court abused its discretion when it based the revocation on violations of probationary conditions that were not actually imposed. He also contends that the evidence conclusively demonstrates that the policies favoring probation outweigh the need for confinement. We reverse and remand.
In July 2011, the district court sentenced Allison to the custody of the commissioner of corrections for 21 months after he pleaded guilty to one count of terroristic threats for threatening to kill several of his family members. Allison's sentence was stayed, and he was put on supervised probation for five years with the conditions that he (1) successfully complete any chemical-dependency treatment or other psychological treatment as required by probation; (2) refrain from alcohol and drug use, and submit to regular testing; (3) successfully complete an anger-management program; (4) serve 75 days in the workhouse with credit given for six days; (5) have no contact with the victims; and (6) remain law abiding. Allison was not specifically instructed to establish or to maintain contact with the probation offers; ordered to obey the standard terms and conditions of probation; or required to sign a written probation agreement.
After Allison was released from the workhouse in late August 2011, his probation officer was unable to contact him at the addresses or phone numbers that he provided. The probation officer then contacted Allison's emergency contact who promised to have Allison call probation. Allison left a phone message with probation in late October, but did not provide a phone number or address where he could be reached. Approximately two weeks after receiving the message from Allison, his probation officer filed a report in which she alleged that Allison had violated two conditions of probation by failing (1) to keep probation informed of his current address and phone number and (2) to maintain contact.
The district court held a probation violation hearing on January 4, 2012. Allison admitted to violating the identified conditions, but alleged that he did not have reliable contact information because he was homeless and had been struggling with mental and physical health issues. Probation recommended that the district court require Allison to serve 90 days in jail instead of executing the 21-month prison sentence. The district court, however, executed the sentence, finding that Allison had "materially, intentionally violated the conditions of [his] probation" and that he was "not an appropriate candidate for probation" because he had a large number of probation violations in the past for other offenses.
Allison appealed, arguing that the district court erred by failing to address the third Austin factor—finding that the need for confinement outweighs the policies favoring probation—for revoking probation. See State v. Allison, A12-0569, 2012 WL 5289871, at *2 (Minn.App. Oct. 29, 2012). The state conceded that the district court failed to address the third Austin factor, and agreed that remand was appropriate. Id.
Allison also argued, for the first time, that the district court erred when it revoked his probation for violating conditions that were never actually imposed. Id. at *3. This court noted that "[a]ppellant not only failed to raise this issue at the district court, but he affirmatively admitted that he had violated the terms of his probation." Id. Regardless, we emphasized that the responsibility for stating the precise terms of a sentence rests with the district court, and directed the district court to address the issue on remand. Id.
At the second revocation hearing held on remand in November 2012, Allison's probation officer testified regarding the "general" or "standard conditions" that are imposed on all probationers. The officer explained that the "main" standard condition is that probationers keep in contact with probation and inform them of any address or phone number changes. The officer testified, ...