State v. Bellanger, No. A04-1790 (MN 6/28/2005)
| Decision Date | 28 June 2005 |
| Docket Number | No. A04-1790.,A04-1790. |
| Parties | State of Minnesota, Respondent, v. Clayton Bellanger, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Itasca County, File No. KO-02-1094.
Mike Hatch, Attorney General, and John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant Itasca County Attorney, (for respondent)
John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, (for appellant)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
UNPUBLISHED OPINION
In this appeal from an order revoking appellant's probation for first-degree assault, appellant Clayton Bellanger argues that the district court abused its discretion in revoking his probation based on three new misdemeanor offenses without making a finding that the need for confinement outweighed the policies favoring probation. He also argues that his waiver of his right to appeal, as part of the plea agreement, is unenforceable, and that Minn. Stat. § 244.11, subd. 3(b) (2002), unconstitutionally bars a defendant who receives a dispositional sentencing departure from obtaining direct appellate review of his sentence. Additionally, appellant argues that Blakely applies retroactively to his 2002 sentence, and the double durational departure based on judicial findings violates his right to a jury trial, requiring a modification of the sentence to the presumptive term. Finally, appellant argues that the record does not support the court's finding that the assault was committed with particular cruelty. Because there was no constitutional infirmity, Blakely does not apply here; and the court did not err in finding particular cruelty, we affirm those determinations. But because the court failed to make all the requisite Austin findings, we reverse and remand for additional findings.
Late in the evening on May 28, 2002, appellant Clayton Bellanger and several other people were gathered together in Ball Club drinking alcohol. At about 10:30 p.m. three people, two men and one woman, arrived to join Bellanger's group. Upon arriving, the woman indicated that M.S., one of the men in the group, had hit her in the face. Approximately 15 minutes later, a fight began between M.S. and Bellanger's group of friends.
Throughout the course of the evening, Bellanger continued to fight intermittently with M.S. and others. The group would fight, stop to drink, and resume fighting. Later, as Bellanger was walking to a friend's house, M.S. yelled "something smart" and began to run away. Bellanger chased him and tackled him, and the two exchanged punches. One of Bellanger's friends then picked up M.S. and held him under his arms as Bellanger kicked him five or six times in the head. Bellanger abandoned M.S. next to the road and went to his friend's house. When Bellanger left M.S., he was not moving or talking and his eyes were shut.
M.S. was treated at the Deer River Hospital for head trauma. He was eventually taken to St. Mary's hospital in Duluth to undergo brain surgery and was later listed in critical condition. Bellanger was apprehended and charged with first-degree assault.
On September 20, 2002, Bellanger pleaded guilty to first-degree assault under a plea agreement that provided for a double upward durational departure and a downward dispositional departure, resulting in a stayed 172-month sentence. The basis for the downward departure was Bellanger's cooperation and willingness to testify truthfully in any other trials. The basis for the upward departure was the particular cruelty of the assault. As part of the agreement, Bellanger would have ten years of supervised probation. He also agreed to have a chemical-dependency and anger evaluation and pay a $1,040 fine. Additionally, he agreed to waive his right to appeal either the conviction or the sentence. The district court sentenced Bellanger in accordance with the agreement on October 28, 2002.
On June 21, 2003, Bellanger admitted to violating his probation by consuming alcohol. The court ordered him to serve 15 days in jail and regularly attend Alcoholics Anonymous meetings. He violated probation again on January 14, 2004, when he admitted to drug use, failure to pay fines, and failure to remain in contact with his probation officer. The court required that he serve six months in jail. On June 22, 2004, Bellanger pleaded guilty to three misdemeanor offenses, including obstruction of legal process, underage consumption, and criminal damage to property. After a hearing, the district court vacated the stay and executed Bellanger's original 172-month sentence. This appeal followed.
Bellanger argues that the district court erred in revoking his probation and executing his sentence because it failed to provide specific findings on each of the Austin factors.
The district court "has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion." State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The district court must engage in a three-step analysis before probation can be revoked: (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. 250. The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he or she cannot be counted on to avoid antisocial activity. Id. at 251.
Bellanger claims that the district court erred when it revoked his probation and executed the sentence without making specific findings on the Austin factors. In the past, appellate courts have applied a "sufficient evidence exception" to the requirement that district courts make findings in support of the Austin factors. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 10, 1995) ( that the district court's failure to make the express findings on the Austin factors is not an abuse of discretion where the record contains sufficient evidence to warrant the revocation); State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (). However, the Minnesota Supreme Court recently determined that the "sufficient evidence" exception previously recognized by the lower courts cannot "be reconciled with the language of Austin itself." State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005). The supreme court specified that it is not the defendant's burden to request that the district court make specific findings on each of the Austin factors and reaffirmed the essential holding of Austin requiring that the district court make the three findings on the record before probation may be revoked. Id.
In this case, the district court failed to make specific findings for each of the three Austin factors on the record. Because the district court is required to make each of the requisite Austin findings expressly and on the record before a defendant's probation may be revoked, and because the district court failed to do so, we must reverse the court's order and remand for additional findings.
Bellanger asserts that Minn. Stat. § 244.11, subd. 3(b)(1)(2) (2002), is unconstitutional. We evaluate a statute's constitutionality as a question of law. Granville v. Minneapolis Pub. Schs., 668 N.W.2d 227, 230 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). Minnesota statutes are presumed constitutional and are declared unconstitutional only "with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). "If a legislative act is reasonably susceptible to two different constructions, one of which will render it constitutional and the other unconstitutional, the former must be adopted." Fed. Distillers, Inc. v. State, 304 Minn. 28, 39, 229 N.W.2d 144, 154 (1975). "[F]airly debatable questions as to [a law's] reasonableness, wisdom, and propriety are not for the determination of courts." S.C. State Highway Dep't v. Barnwell Bros., 303 U.S. 177, 191, 58 S. Ct. 510, 517 (1938); see also State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).
Here, Bellanger claims that Minn. Stat. § 244.11, subd. 3(b), is unconstitutional because: (a) a defendant cannot waive his right to appeal a sentence; (b) it violates the separation of powers doctrine; (c) criminal rules take precedence over conflicting procedural statutes; and (d) it violates the Equal Protection Clause.
Bellanger argues that, although he waived his right to appeal during the plea hearing, that waiver is unenforceable. Generally, it is possible to forgo a constitutional or statutory right with a knowing, intelligent, and voluntary waiver. Ballweber v. State, 457 N.W.2d 215, 217 (Minn. App. 1990). In this case, Bellanger entered a plea agreement which required him to plead guilty to first-degree assault, in return for a downward dispositional departure and an upward durational departure. Accordingly, his sentence was a stayed 172-month sentence. Bellanger's lawyer, the prosecutor, and the court engaged in a colloquy with Bellanger to establish that Bellanger was making an informed decision in entering the plea agreement. At one point, the prosecutor specifically asked Bellanger if he was "agreeing to give up [his] right to appeal the sentence that would be imposed as part of this plea agreement?" He answered that he understood that he was waiving his...
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