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State v. Sowada

Court of Appeals of Minnesota

July 29, 2013

State of Minnesota, Respondent,
v.
Adam Bryan Sowada, Appellant.

UNPUBLISHED OPINION

Swift County District Court File No. 76-CR-09-102

Lori Swanson, Attorney General, St. Paul, Minnesota; and Robin Finke, Swift County Attorney, Danielle Olson, Harry D. Hohman, Assistant County Attorneys, Benson, Minnesota (for respondent)

Gregory K. Larson, Little Falls, Minnesota (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Cleary, Judge; and Willis, Judge [*]

CLEARY, Judge

Appellant challenges the district court's determination that he violated his probation, arguing that the court should have granted a continuance; that he was denied his right to assistance of counsel; and that the court failed to make proper findings. We affirm.

FACTS

In August 2009, appellant Adam Bryan Sowada pleaded guilty to third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(b) (2008). He was sentenced to serve 150 days in jail, adjudication was stayed, and he was placed on supervised probation for five years. As one of the conditions of his probation, he was ordered to complete a sex-offender treatment program.[1] Appellant was represented by an attorney during the proceedings.

In October 2011, a probation-violation report was filed with the court stating that appellant had failed to complete the treatment program. Appellant had been terminated from the program because he had excessive absences and had failed to make adequate progress. At a probation-violation hearing in January 2012, appellant's probation was extended to January 2017, and he was ordered again to successfully complete a treatment program.

In May 2012, another probation-violation report was filed with the court stating that appellant had again failed to complete the treatment program. Appellant had been terminated from the program due to excessive absences and because his therapist was concerned about his dishonesty and his commitment to making lifestyle changes. A hearing was scheduled for June 14, 2012. Appellant requested a continuance because he had "important family issues going on" on June 14. The court granted the continuance, and the hearing was rescheduled for July 19, 2012. On July 9, 2012, appellant requested another continuance, noting that he had a pending probation violation in Morrison County for the same conduct. He also stated that he did not have a lawyer. The court denied appellant's continuance request. During the hearing on July 19, the following exchange took place between appellant and the court:

THE COURT: [Y]ou've been charged with violating probation for not completing the sex offender treatment program, and you were given a statement of your rights today. Did you read that over?
APPELLANT: Yes.
THE COURT: Okay. One of your rights is the right to have an attorney, including a court-appointed attorney if you can't afford one. Do you want time to talk to an attorney?
APPELLANT: Well, I – I wouldn't have enough money to even afford an attorney and stuff.
THE COURT: Do you want to apply for a public defender?
APPELLANT: I wouldn't even – I wouldn't qualify for it because I make too much.
THE COURT: Okay. Well, you're – you have the right to apply for one, and then I could review the affidavit and see if you qualify. But ...

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