Polk County District Court File No. 60-CR-10-1038
Lori Swanson, Attorney General, St. Paul, Minnesota; and Gregory Widseth, Polk County Attorney, Andrew W. Johnson, Assistant County Attorney, Crookston, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Tania K. M. Lex, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Kalitowski, Judge; and Willis, Judge. [*]
Appellant challenges the revocation of his probation and execution of his sentence for first-degree burglary, arguing that the district court (1) failed to inform him of his rights under Minn. R. Crim. P. 27.04, subd. 2(1)(c); (2) failed to make sufficient findings in support of the Austin factors, and (3) abused its discretion by revoking his probation and executing his sentence. We affirm.
In May 2010, appellant Clarence Bruce Beaulieu was charged by complaint with two counts of first-degree burglary, one count of gross misdemeanor violation of a domestic abuse no contact order (DANCO), and one count of gross misdemeanor domestic assault. The complaint alleged that appellant, in violation of a DANCO issued two days before and apparently under the influence of alcohol, gained entry into the apartment of his ex-girlfriend and began pushing her around. Appellant pleaded guilty to one count of first-degree burglary in exchange for dismissal of the remaining charges and a stayed guideline sentence, which represented a downward dispositional departure. Consistent with the plea agreement, appellant received a 57-month sentence, execution of which was stayed for a period of 20 years upon the condition that he serve 180 days of local incarceration and be placed on supervised probation. Conditions of probation required appellant to undergo a chemical dependency and domestic abuse assessment, refrain from possessing or consuming alcohol and controlled substances, refrain from contacting the victim, sign a probation agreement, and remain in contact with his probation agent.
A probation violation report was filed on September 21, 2010, alleging that appellant failed to follow probationary rules by not keeping appointments with his agent and not complying with required instructions. The agent represented that appellant failed to make necessary arrangements to sign the probation agreement so that probation could be transferred to Clearwater County, where appellant was residing. A warrant was issued after appellant failed to appear at an initial hearing on October 4, 2010, and with the assistance of a public defender, appellant eventually entered an admission to the alleged violation on February 7, 2011. At a dispositional hearing on February 11, 2011, the state, noting his failure to "comply with even the most basic conditions of probation, " requested execution of appellant's sentence. The district court provided the following warning to appellant:
Now, I don't know if Clearwater is going to want to take you as a probation person or not. And if they don't, that's kind of between them and, I guess, probation over here. In any circumstance, you've got to work with probation. That means you've got to keep meetings with them, you've got to let them know what your addresses are, what your phone numbers are. If you've got a meeting and you've got to cancel it, you've got to get on the phone and call them up and you've got to tell them, "Hey, I can't make it, can I get another date?" and then you'd better make another date. And, if you forget about it, you're going to be back in front of me and [the prosecutor] is going to say, "Judge, I told you so, " and I'm going to say to you, "Goodbye, " and you're going to go to St. Cloud and you're going to get shipped off to one of the state correctional facilities; St. Cloud, Stillwater, wherever it happens to be. I'm not going to worry about it, [the prosecutor] isn't going to worry about it, you're the one who has to worry about it. Because, if you don't follow through and get these things done, you know what's going to happen.
Consistent with the recommendation of appellant's probation agent, the district court reinstated appellant's supervised probation and initial terms, and imposed 120 additional days of jail time. The district court also specifically required completion of the chemical dependency assessment during the period of confinement and completion of the domestic abuse assessment within six months. Appellant signed the probation agreement shortly thereafter.
Appellant's probation was again revoked on August 3, 2012, upon an allegation that appellant failed to keep all appointments and be truthful with his agent, and failed to complete the chemical dependency assessment. The violation report alleged that appellant's "adjustment to probation has been unsatisfactory" and explained that he failed "to report as directed." The violation report also noted that in January 2012, appellant was found "in a ditch on the side of the road" with an alcohol concentration of .30 and had not been in contact with his probation agent since March 2012. While appellant had nine previous office visits and eight collateral contacts, appellant's whereabouts were unknown at the time of the report. Despite this, the report did not recommend execution of appellant's sentence.
Appellant again obtained the services of a public defender and admitted the violations on August 13, 2012. At a disposition hearing on September 24, 2012, the district court executed ...