State ex rel. Guth v. Fabian

• Decision Date: 13 June 2006
• Docket Number: No. A05-1554.,A05-1554.
• Citation: 716 N.W.2d 23
• Parties: STATE of Minnesota, ex rel. Andrew Allen GUTH, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.
• Court: Minnesota Court of Appeals

Page 23

716 N.W.2d 23

STATE of Minnesota, ex rel. Andrew Allen GUTH, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.

No. A05-1554.

Court of Appeals of Minnesota.

June 13, 2006.

Andrew Allen Guth, Moose Lake, MN, pro se appellant.

Brent D. Wartner, Assistant Legal Counsel, St. Paul, MN, for respondent.

Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and WILLIS, Judge.

OPINION

WILLIS, Judge.

In this appeal from the denial of a petition for a writ of habeas corpus, appellant contests his removal from the challenge incarceration program (CIP) and the "abscond/escape charge" on his prison record. Because these arguments lack merit, we affirm in part. Appellant also argues that the time he served during phase I of the CIP should be applied against his term of imprisonment. Because Minn.Stat. § 244.171, subd. 4 (2004), does not prohibit applying against the term of imprisonment of an offender removed from the CIP the number of days that he served in a state correctional facility during phase I of the program, we reverse in part and remand to the district court to recalculate appellant's remaining term of imprisonment.

FACTS

In February 2003, appellant Andrew Allen Guth pleaded guilty to second-degree controlled-substance crime and was sentenced to an executed 44-month prison term, with 71 days of jail credit. The sentence was to be served consecutively to the executed sentence that Guth was then serving for a conviction of theft of a motor vehicle.

In November 2003, Guth was approved for participation in the challenge incarceration program (CIP), which is a three-phase, community-integration program for eligible nondangerous-drug and property offenders that includes rigorous physical training, work and education programs, chemical-dependency treatment, intensive supervision and surveillance, random drug and alcohol testing, and a high level of offender accountability. An offender completes phase I, commonly called "boot camp," in a participating Minnesota correctional facility and completes phases II and III at a pre-approved residence, under the supervision of an assigned supervising agent.

Before entering the CIP, Guth signed an agreement that includes the following provision:

I understand and agree that violation of any of the rules of the facility may constitute grounds for termination of my CIP status and return to a Minnesota Correctional Facility, and that if my CIP status is terminated the time served in the CIP will not be credited toward my original term of imprisonment.

Between November 13, 2003, and May 9, 2004, Guth completed phase I of the CIP. On May 10, 2004, Guth began phase II of the CIP, during which he was permitted to live at his parents' residence after he agreed to certain conditions of release, including a provision that he would "maintain contact with [his supervising agent] as directed" and "at all times follow the instructions of the agent." During phase II, Guth tested positive for alcohol, for which he received an intermediate sanction; Guth claimed that there was beer in a marinating sauce that he tasted. And in July 2004, Guth was cited for failing to maintain contact with his supervising agent. Guth admitted to the violation, and his conditions of release were restructured to require 30 days of electronic home monitoring.

In November 2004, Guth began phase III of the CIP, and, according to his supervising agent, he "appeared to be doing well." Guth was employed and attending college part time. On November 14, 2004, Guth's father called Guth's supervising agent and reported that Guth had not been living at his parents' house since November 6, 2004; that Guth had been in an accident with his motor vehicle; and that Guth was "again hanging out with his `using' friends." Guth's supervising agent called Guth that evening, leaving a numeric page on Guth's cell phone, but Guth did not return his agent's call. Guth's supervising agent also verified that Guth was not at his residence at 10:40 p.m., despite the fact that Guth had a 10:30 p.m. curfew. So, on November 14, 2004, Guth's supervising agent obtained an arrest warrant, and Guth was taken into custody on November 19, 2004. Guth's supervising agent cited him for failing to inform his agent of his residence and activities, failing to maintain contact with his supervising agent as directed, and failing to follow his supervising agent's instructions. Guth's supervising agent recommended that Guth be removed from the CIP.

At his revocation hearing, Guth denied all three of his supervising agent's allegations. Guth claimed that he was having problems with his cell phone; that he had turned his cell phone off the evening of November 14, 2004; and that he never received the numeric page. Guth also claimed that he did not believe that the 10:30 p.m. curfew applied on the nights he was attending school, that he "had no idea that there had been a warrant issued," and that he "had not been directed to turn himself [in]." The hearing officer dismissed the allegation that Guth had failed to reside at an approved residence because "the standard of proof [had] not been met." But the hearing officer found that Guth had violated the conditions of his release by failing to maintain contact with his supervising agent and by not being available to his supervising agent at Guth's residence at 10:40 p.m. on November 14, 2004. The hearing officer revoked Guth's CIP status and returned him to serve his original prison term. Guth appealed to the executive officer of the hearings-and-release unit, who affirmed the hearing officer's decision.

In May 2005, Guth filed a petition for a writ of habeas corpus, arguing that (1) there was no evidence that he violated the conditions of his release; (2) the revocation hearing officer was biased; (3) that "a five-day abscond/escape charge" was improperly placed on his record for the dates November 14 through 19, 2004; and (4) the time he served during phase I of the CIP should be applied against his term of imprisonment. The district court denied Guth's petition without an evidentiary hearing. This appeal follows.

ISSUES

1. Did the revocation hearing officer abuse her discretion by revoking Guth's CIP status?

2. Was "an abscond/escape charge" wrongly placed on Guth's record?

3. Should the number of days that Guth spent in a state correctional facility during phase I of the CIP be applied against his term of imprisonment?

ANALYSIS

On appeal from the denial of a petition for a writ of habeas corpus, the district court's findings are entitled to great weight and they will be sustained if they are reasonably supported by the evidence. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17, 1998). Questions of law, however, are subject to de novo review. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993).

A writ of habeas corpus is a statutory civil remedy available "to obtain relief from [unlawful] imprisonment or restraint." Loyd v. Fabian, 682 N.W.2d 688, 690 (Minn.App.2004) (quoting Minn.Stat. § 589.01 (2000)), review denied (Minn. Oct. 19, 2004); see Minn.Stat. § 589.01 (2004). A writ of habeas corpus may also be used to raise claims involving fundamental constitutional rights and significant restraints on a defendant's liberty or to challenge the conditions of confinement. See, e.g., Kelsey v. State, 283 N.W.2d 892, 895 (Minn. 1979) (noting that habeas corpus may be used to challenge prison conditions as cruel and unusual punishment).

I.

Guth argues that he was wrongfully removed from the CIP. The commissioner of corrections "shall impose severe and meaningful sanctions for violating the conditions of the [CIP]," including removing an offender from the program if the offender "commits a material violation of or repeatedly fails to follow the rules of the program." Minn.Stat. § 244.171, subd. 4 (2004). The rules for a supervised-release revocation govern the process for removing an offender from the CIP, and those rules provide that a revocation hearing must be held. Minn.Stat. §§ 244.171, subd. 4(3), .05, subd. 2 (2004); see also Minn. R. 2940.3500-.4500 (2003). If a revocation hearing officer finds that an offender is "in violation of [his] . . . supervised release," the hearing officer may revoke the supervised release and return the offender to prison. Minn. R. 2940.3700. Revocation is justified when there is enough evidence to satisfy the decision-maker that the conduct of the offender does not meet the conditions of his release. United States v. Strada, 503 F.2d 1081, 1085 (8th Cir.1974). This court reviews a decision to revoke an offender's release for a clear abuse of discretion. State v. Schwartz, 615 N.W.2d 85, 90 (Minn.App.2000), aff'd, 628 N.W.2d 134 (Minn. June 28, 2001).

Guth argues that there is insufficient evidence to support the revocation hearing officer's findings that Guth violated the conditions of his release by failing to maintain contact with his supervising agent as directed and by failing to follow his supervising agent's instructions by violating his curfew. The record shows that the hearing officer based her findings on the facts that both "Guth and [his supervising agent] confirm[ed] that there was no contact between [Guth] and [the] agent between [November 14 and November 19, 2004]" and that the supervising agent stated that Guth was not at his residence after his 10:30 a.m. curfew on November 14, 2004. Because this is sufficient evidence to support the findings that Guth violated the conditions of his release and because these violations are sufficient to justify revocation, we conclude that the hearing officer did not abuse her discretion by revoking Guth's CIP status.

Guth argues that his supervising agent lied about leaving a numeric page on Guth's cell phone on the evening of November 14, 2004. The record shows...