State v. Kouba

• Decision Date: 07 February 2006
• Docket Number: No. A04-2489.,A04-2489.
• Citation: 709 N.W.2d 299
• Parties: STATE of Minnesota, Respondent, v. Gary Wayne KOUBA, Appellant.
• Court: Minnesota Court of Appeals

709 N.W.2d 299

STATE of Minnesota, Respondent, v. Gary Wayne KOUBA, Appellant.

No. A04-2489.

Court of Appeals of Minnesota.

February 7, 2006.

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Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, St. Paul, MN; and Earl E. Maus, Cass County Attorney, Cass County Courthouse, Walker, MN, for respondent.

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.

Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and CRIPPEN, Judge.^*

OPINION

KLAPHAKE, Judge.

Appellant argues that his constitutional right to consult with an attorney was violated because he was not advised of his right to counsel in a probation revocation hearing held under Minn.Stat. § 609.14, subd. 2 (2002). After the district court improperly extended appellant's probation, his probation officer conducted a warrantless search of his residence under the terms of his probation and seized evidence that led to his conviction for a new offense. Because appellant was not validly on probation at the time of the search, any evidence seized at that time or during a later warrant search premised on evidence obtained in the initial search, was obtained illegally and must be suppressed. We therefore reverse.

FACTS

On February 20, 2001, appellant Gary Wayne Kouba pleaded guilty to fifth-degree criminal sexual conduct involving a minor victim in violation of Minn.Stat. § 609.3451, subd. 1(1) (2000). He was sentenced to one year in jail, with all but 45 days stayed, and placed on probation for two years. Among the conditions of his probation, appellant was required to abide by state and federal laws, be truthful with his probation officer, submit to searches of his person and residence, refrain from contacting the victim, complete sex-offender treatment and all aftercare, and have no unsupervised contact with minors.

On February 10, 2003, appellant agreed to extend his probation for one year because he had not completed the required sex-offender treatment. He was represented by counsel at the probation hearing.

On February 9, 2004, one day before his extended probation was set to expire, the district court held a hearing for the purpose of again extending his probation. Apparently, appellant had still failed to complete his sex-offender treatment within the probationary period. At this hearing, appellant was not advised of the right to counsel or represented by counsel. At the beginning of the hearing, the court stated:

[T]he reason why we are here today is to allow Mr. Kouba the opportunity to rather than be in violation of his probation or get some sort of a warrant or stay, to extend his period of probation for one year from today's date, to the 9th of February, 2005, in order that he may have an additional opportunity to complete some treatment that he is working on.

Following this hearing, the district court extended appellant's probation for another year.

Approximately one week later, a Bureau of Criminal Apprehension special agent was administering a polygraph test to appellant as part of appellant's sex-offender treatment. Just before he was to take the test, appellant admitted that he possessed a videotape of a juvenile masturbating and photographs depicting naked juveniles.

Appellant's probation officer, Mary Hoglund, was informed of appellant's admission to a possible probation violation. Hoglund met with appellant and placed him on a 72-hour hold. Consistent with internal policy, Hoglund also sought a police escort before initiating a search of appellant's residence. Hoglund and Cass County Sheriff's Office Investigator Mike Diekmann accompanied appellant to his house, where appellant revealed numerous videotapes showing minors in sexual poses and other pornographic materials. Hoglund and appellant participated in the search, with Diekmann merely observing, although at one point he questioned the identity of one of the juveniles who appeared in one of the videotapes. One videotape showed appellant having oral sex with a minor victim. After appellant's arrest, police requested and obtained a search warrant for appellant's residence that resulted in the recovery of more pornographic materials.

Appellant was charged with third-degree criminal sexual conduct, use of a minor in a sexual performance, and possession of pornography involving minors under Minn. Stat. §§ 609.344, subd. 1(b), 617.246, subd. 2, 617.247, subd. 4(b) (2002). Appellant brought a pretrial motion to suppress all evidence obtained by the state "on the grounds that such evidence was seized in violation of the defendant's constitutional and statutory protections against unreasonable searches and seizures." After an omnibus hearing, the district court denied appellant's motion to suppress evidence.

The parties agreed to try the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Appellant was convicted of use of a minor in a sexual performance, and of fourth-degree criminal sexual conduct under Minn.Stat. § 609.345, subd. 1(b) (2002). The district court imposed a stayed 15-month sentence and placed appellant on probation for ten years.

On appeal from his conviction, appellant argues that his constitutional rights were violated because the initial search of his house was conducted without a search warrant, and the search was conducted after a probation revocation hearing at which appellant was not advised of his right to an attorney.

ISSUE

When appellant was not advised of his right to an attorney during a probation revocation hearing that resulted in the extension of his probation, did the later seizure of evidence pursuant to the conditions of appellant's probation violate his constitutional rights so as to require suppression of that evidence?

ANALYSIS

Appellant claims that the district court erred by declining to suppress the evidence seized in the warrantless entry of his residence. We review pretrial motions to suppress evidence by independently considering the facts to determine whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Right to Counsel

At the hearing to extend appellant's probation on February 9, 2004, appellant was not represented by counsel nor was he given the opportunity to have counsel represent him. Because of this, appellant argues that his probation was erroneously extended. We agree.

Traditionally, the Sixth Amendment right to counsel attaches at the "critical stages" of criminal proceedings. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). The Minnesota Constitution guarantees a right of legal representation to anyone charged with a crime. Minn. Const. art. 1, § 6. See Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 793-97, 9 L.Ed.2d 799 (1963) (applying Sixth Amendment right to counsel to states via 14th Amendment); Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991) ("Minnesota has a long tradition of assuring the right to counsel."); State v. Dumas, 587 N.W.2d 299, 301 (Minn.App. 1998) ("the right to counsel and the other procedural protections afforded criminal defendants are generally triggered by the threat of incarceration[.]"), review denied (Minn. Feb. 24, 1999).

Specifically, "a defendant is entitled to representation at a probation revocation hearing." State v. Ferris, 540 N.W.2d 891, 893 (Minn.App.1995); see State v. Balma, 549 N.W.2d 102, 104-05 (Minn.App.1996) (reaffirming existence of right to counsel in probation revocation proceedings); see also Mempa v. Rhay, 389 U.S. 128, 135-37, 88 S.Ct. 254, 257-58, 19 L.Ed.2d 336 (1967) (counsel must be provided during hearings that combine sentencing and probation revocation). The right to counsel is also expressly provided for in probation revocation proceedings under Minnesota statutes and rules of criminal procedure. Minn.Stat. § 609.14, subd. 2 (2002) (at probation revocation hearing, "defendant is entitled to be heard and to be represented by counsel"); Minn. R.Crim. P. 27.04, subd. 2(1)(a) (at probation revocation hearing, probationer must be advised of entitlement "to counsel at all stages of the proceedings"). The failure to advise a probationer of the right to counsel mandates reversal of a probation revocation. State v. Murray, 529 N.W.2d 453, 455 (Minn.App.1995).

The state asserts that the February 9 hearing pertained to appellant's probation but did not constitute a probation revocation hearing, so appellant was not entitled to counsel. The district court considered and rejected appellant's claim in its omnibus order:

The second [February 9, 2004] extension was a voluntary arrangement so the defendant would not be facing a probation violation. Because this did not constitute an adversarial proceeding, counsel was not required as would have had there been a probation violation that had been filed. Minn. R. Civ. P. 27.04.

Although in a perfect world, counsel would have been present, the Court does not find that jurisdiction was lost in this case because counsel was not appointed for [appellant] prior to his voluntarily extending the period of probation.... Although it would constitute better practice to give an advisory, the failure to do so in this case does not divest the Court of jurisdiction[.]

We disagree with the district court's conclusion that the February 9, 2004 hearing was not a probation revocation hearing.

Minn.Stat. § 609.135, subd. 1c (2002) addresses a probationer's failure to complete court-ordered treatment, requiring that within 60 days of the expiration of the probationary period the prosecutor or probation officer request "a hearing to determine whether the conditions of probation should be changed or probation should be revoked." As such, and under the facts of this case, the hearing appellant received was a probation revocation hearing. The...