State v. Armstrong
| Decision Date | 22 July 2019 |
| Docket Number | A19-0086 |
| Parties | State of Minnesota, Respondent, v. Terry Kenneth Armstrong, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed in part, reversed in part, and remanded
Stearns County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Slieter, Judge; and Klaphake, Judge.*
UNPUBLISHED OPINION
Appellant challenges the revocation of his probation, arguing that the district court abused its discretion in determining that his conduct was intentional and inexcusable, and that the need for confinement outweighed the policies favoring probation. He also argues that the district court erred in sentencing him to 128 months' imprisonment, when his guilty plea contained an agreement to a 98-month cap. We affirm in part, reverse in part, and remand.
On December 6, 2016, law enforcement observed appellant Terry Kenneth Armstrong sell methamphetamine to a confidential informant. After the sale, appellant drove away, and officers followed him in three marked police vehicles. Appellant entered I-94, and officers activated the lights on the three police vehicles as they followed him. Officers then activated their sirens. The traffic on the highway was heavy and the road was snowy, but appellant continued to accelerate and did not make any effort to stop. In light of the road conditions, officers cancelled the pursuit to protect public safety.
On February 28, 2017, the state charged appellant with fleeing a police officer, in violation of Minn. Stat. § 609.487, subd. 3 (2016). The state later amended the complaint to add a count 2 for first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 1(1) (2016). Appellant pleaded guilty to count 2, and the state dismissed count 1. The parties agreed to a "98-month cap" on the sentence with the understanding that appellant would argue for a downward dispositional departure. The district courtaccepted appellant's plea. On June 14, 2018, the district court held a sentencing hearing. The district court granted appellant's motion for a downward dispositional departure, stayed execution of a 128-month prison sentence, and placed him on probation for 30 years. Conditions of his probation included successfully completing treatment at Restoration Counseling and Community Services (RCCS) and abstaining from the use of all mood-altering chemicals.
In October 2018, appellant's probation officer filed a violation report. It stated that appellant had committed two probation violations: (1) failing to complete treatment programs at RCCS and Park Avenue Treatment, and (2) failing to abstain from illegal drugs or alcohol. On October 24, 2018, the district court held a contested probation revocation hearing. Appellant admitted to the violations. Appellant admitted to struggling during treatment and ultimately relapsing. He explained that he was coping with the death of his brother, and that he was doing everything he could to stay sober.
The district court found that the "violation was intentional or inexcusable in terms of the last prong, the need for confinement outweighing the policies favoring probation." The district court explained that "[m]y biggest concerns are . . . all the criminal activity that was going on before your brother died and the positive UAs before your brother died." The district court understood that the death of a family member might "send anybody into a spiral," but that once appellant got the dispositional departure at sentencing, he "went back to the same behavior." The district court thus sentenced appellant to 128 months' imprisonment. This appeal follows.
The district court has broad discretion in determining whether sufficient evidence exists to revoke probation, and we will reverse only if there is a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).
When revoking probation, a district court must: (1) specify the conduct or conditions that the probationer violated, (2) find the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. Id. at 250. The district court's decision to revoke probation "cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he . . . cannot be counted on to avoid anti-social activity." Id. at 251 (quotations omitted).
The supreme court has reaffirmed these holdings and language from Austin. State v. Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005). It went on to explain that the three-step analysis in Austin "assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation[]" and that district Id. at 608.
Appellant challenges the district court's findings on the second and third Austin factors. We analyze each in turn.
Appellant argues that his failure to complete aftercare treatment at a sober house was excusable because he was dealing with a 30-year chemical addiction, and then suddenly lost his brother. However, as the district court noted, appellant was using drugs before his brother passed away. Appellant's brother died in early October 2018, but appellant started displaying problems complying with probation much earlier. On June 19, 2018, just five days after his sentencing, his probation officer received a notice that he was breaking rules at RCCS. On July 25, 2018, appellant submitted a UA that was positive for methamphetamine. He provided another positive UA on August 28, 2018. Appellant completed in-patient treatment at RCCS in July, but left aftercare at the Park Avenue Treatment program in October; he was discharged "as AWOL."
There is nothing in the record to suggest that the district court abused its discretion in finding that appellant intentionally and inexcusably violated the terms of his probation. Appellant intentionally used drugs and admitted that no one forced him to do so. While the traumatic event of losing his brother could provide some excuse for his behavior, appellant acknowledged submitting positive UAs before that occurred. The district court did not abuse its discretion in finding that appellant's behavior was intentional and inexcusable.
Appellant further argues that the policies favoring probation outweighed any need for confinement because, while he struggled with relapses, he had successfully completed one treatment program, and "[e]ach time he fell, he took the initiative to get back on track."
When analyzing this third factor, a district court must consider that the purpose of probation is rehabilitation, and revocation should be a last resort. Modtland, 695 N.W.2d at 606. The need for confinement outweighs the policies favoring probation if at least one of three subfactors are met:
The district court found that all three subfactors were met. The district court focused on the addendum to the violation report, stating that "[m]y biggest concerns are the addendum report where it's talking about[] . . . all the criminal activity that was going on before your brother died and the positive UAs before your brother died." The addendum report specifically noted that appellant had three incidents from August to October 2018, where he had contact with law enforcement and failed to notify his probation officer. Appellant contends that these allegations were unproven, and based on "some unknown hearsay source." However, at the revocation hearing, appellant admitted that at least one of these incidents occurred, he had contact with law enforcement and failed to notify his probation officer. He explained that he didn't think it was a "big deal" because the officers let him go, and did not understand that he was required to report the incident.
Appellant further argues that the district court erred in relying on the addendum because ...
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