State v. Horton

• Decision Date: 03 October 2022
• Docket Number: A21-1746
• Parties: State of Minnesota, Respondent, v. Joseph Troy Horton, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent,
v.
Joseph Troy Horton, Appellant.

No. A21-1746

Court of Appeals of Minnesota

October 3, 2022

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Stearns County District Court File Nos. 73-CR-19-9862, 73-CR-17-2214

Keith Ellison, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Segal, Chief Judge; and Gaïtas, Judge.

OPINION

SEGAL, CHIEF JUDGE

Appellant challenges the revocation of his probation and the imposition of an aggravated sentence, arguing that the district court made insufficient findings to support

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the revocation decision, the record does not establish that the need for confinement outweighs the policies favoring continued probation, the notice of the grounds for revoking his probation was inadequate, and the statutory factor used at sentencing to aggravate his sentence does not apply to the offense to which he pleaded guilty. We affirm.

FACTS

Respondent State of Minnesota charged appellant Joseph Troy Horton with three offenses related to prostitution, each involving an aggravating factor. The complaint included one count of promoting prostitution with the aggravating factor that the offense involved more than one sex-trafficking victim; one count of promoting prostitution with the aggravating factor that the offense involved a sex-trafficking victim who suffered bodily harm; and one count of receiving profits from prostitution with the aggravating factor that the offense involved a sex-trafficking victim who suffered bodily harm.

Pursuant to a plea agreement, Horton pleaded guilty to promoting prostitution in violation of Minn. Stat. § 609.322, subd. 1a(2) (2016), with the aggravating factor that the offense involved more than one sex-trafficking victim, as provided in Minn. Stat. § 609.322, subd. 1(b)(4) (2016). In exchange, the state dismissed the remaining two counts and supported Horton's request for a downward dispositional departure. During the plea colloquy, Horton admitted that he drove two individuals to various places to engage in prostitution with the intent of aiding in the prostitution of those individuals. He also admitted that both individuals were sex-trafficking victims.

The district court imposed a 228-month prison sentence, stayed for 25 years. The conditions of Horton's probation included that he follow all recommendations from his

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chemical-use assessment; complete individual therapy and follow all recommendations; refrain from possessing or using sexually explicit material; and follow all rules of the county's "enhanced probation" program. Horton was also prohibited from accessing the internet except as approved by his probation officer, and was required to tell his probation officer about, and to install device-monitoring software on, all electronic devices in his possession.

Less than three months after he was sentenced, Horton's probation officer filed a probation-violation report alleging three violations. In the report, the probation officer alleged, first, that Horton failed to follow all recommendations from his chemical-use assessment because, although Horton successfully completed residential chemical-dependency treatment, he was unsuccessfully discharged from outpatient treatment. The probation officer alleged, second, that Horton had violated the internet-access conditions of his probation because he acquired a cell phone without reporting it to his probation officer and without having monitoring software installed. The third alleged violation was that Horton missed a "whereabouts" verification, violating the condition that he follow all rules of enhanced probation.

The probation-violation report contained extensive comments and supporting documents related to Horton's violations and other behavior. The report noted that "[Horton's] dislike of [his outpatient treatment] was a constant and on-going topic with [his probation officer] until his eventual discharge," that Horton had repeatedly expressed unhappiness with the phone-monitoring software, and that sexually explicit images had

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been found on his phone.^[1] The report also noted that Horton had sought, but was denied, permission to have contact with prison inmates who had "a prostitution-type case" or whose offense involved "a possible sex trafficking victim." The report went on to state that it was believed that Horton was nevertheless using an unmonitored device to contact one of those inmates.^[2] The probation officer included the discharge summary from Horton's outpatient treatment in his report. The discharge summary stated that Horton was discharged because of "[o]ngoing efforts . . . to circumvent rules of probation, not making progress in treatment due to his ongoing focus on unhappiness with probation," and "interfering with others' recovery." Horton's probation officer recommended that Horton's probation be revoked.

At the probation-revocation hearing, Horton admitted the three violations identified in the report-that he was unsuccessfully discharged from outpatient treatment, possessed an unreported phone without monitoring software (the unreported phone), and missed a "whereabouts" verification. Horton also admitted that the violations were intentional or inexcusable.

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After hearing testimony from Horton and the probation officer, the district court revoked Horton's probation. The district court made certain findings on the record followed by a written order. The district court based its decision on the three violations admitted by Horton and Horton's admission that the violations were intentional or inexcusable. The district court found the testimony of the probation officer to be "exceedingly credible" and that the need for confinement outweighed the policies favoring probation on all three of the subfactors set out in State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005)-that confinement is necessary to protect the public, that the offender is in need of correctional treatment which can be most effectively provided if he is confined, and that it would unduly depreciate the seriousness of the violations if probation was not revoked.

DECISION

On appeal, Horton challenges both the revocation of his probation and the aggravation of his sentence. We address each in turn.^[3]

I. The district court did not abuse its discretion in revoking Horton's probation.

In challenging the revocation of his probation, Horton argues that the district court's findings were not legally sufficient and were not supported by the record. He also argues

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that the state failed to provide him with adequate notice of the grounds it was relying on to seek a revocation of his probation.

To revoke probation, a district court "must 1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that [the] need for confinement outweighs the policies favoring probation." State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). "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." Id. at 249-50. But we review de novo "whether a lower court has made the findings required under Austin." Modtland, 695 N.W.2d at 605. "[I]n making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon." Id. at 608.

A. The district court's findings are legally sufficient and supported by the record.

Horton contends that the district court failed to make sufficient findings on the third Austin factor-whether the need for confinement outweighs the policies favoring probation-and that the findings that were made by the district court are not supported by the record. In making a determination on the third Austin factor, a district court "must balance the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety." Modtland, 695 N.W.2d at 606-07 (quotation omitted). This involves consideration of the Modtland subfactors-whether

(i) confinement is necessary to protect the public from further criminal activity by the offender; or

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(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked. Id. at 607 (quotation omitted).

Horton argues that the district court made legally insufficient findings on the third Austin factor because it fell short of Modtland's call to create a "thorough, fact-specific record[]" and "convey [its] substantive reasons for revocation and the evidence relied upon." Id. at 605. A district court's decision to revoke probation must be "based on sound judgment and not just [its] will." Austin, 295 N.W.2d at 251. "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. (quotations omitted).

Regarding the first Modtland subfactor, the district court found in its written order that "confinement is...