State v. Morrow

Decision Date17 November 1992
Docket NumberNo. C7-92-1295,C7-92-1295
Citation492 N.W.2d 539
PartiesSTATE of Minnesota, Respondent, v. Randy Lee MORROW, Appellant.
CourtMinnesota Court of Appeals

Syllabus by the Court

Where no alternative measures but imprisonment exist to satisfy the state's penological interest, revoking probation conditioned upon probationer's completion of sex offender treatment, when county funding for treatment was unavailable and probationer could not afford to pay for the treatment himself, does not violate the due process and equal protection rights of the probationer.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Michael A. Fahey, Carver County Atty., Tara E. Keehr, Asst. County Atty., Chaska, for respondent.

John M. Stuart, State Public Defender, Lawrence W. Pry, Asst. State Public Defender, St. Paul, for appellant.

Considered and decided by NORTON, P.J., and HUSPENI and CRIPPEN, JJ.

OPINION

HUSPENI, Judge.

Appellant asserts that the sentencing court abused its discretion and violated the Due Process and Equal Protection Clauses of the United States and Minnesota Constitutions when it revoked his probation and executed a 34-month prison sentence. The court originally conditioned probation upon appellant's successful completion of an inpatient sex offender treatment program. When the county refused to fund the treatment and appellant, because he is indigent, could not afford to pay for treatment himself, the court revoked appellant's probation. We affirm.

FACTS

Appellant pleaded guilty to three counts of criminal sexual conduct in the second degree in violation of Minn.Stat. § 609.343, subd. 1(a) (1990). The conduct underlying appellant's convictions involved sexual contact with three young girls and sexual penetration of one of the three girls. All three girls were friends of appellant's daughter.

At the sentencing hearing, appellant requested a dispositional departure from the presumed executed sentence, which would result in probation for all three offenses. Availing himself of residential treatment, appellant argued, would make him less likely to reoffend.

The state and appellant presented the results of the presentence investigation regarding the feasibility of sex offender treatment as an alternative to prison. Appellant was evaluated by two treatment programs: Intensive Treatment Program for Sexual Aggressives (ITPSA) at St. Peter State Hospital and Alpha Human Services (Alpha) in Minneapolis. ITPSA determined that appellant was not an appropriate candidate for its program. A psychologist at ITPSA testified that appellant required intensive residential treatment and that appellant was a risk to reoffend. ITPSA "could not recommend a less restrictive alternative."

Alpha's intake director testified that appellant was an appropriate candidate for its sex offender program. He testified that appellant, without intensive inpatient treatment, would likely reoffend. Neither Alpha nor ITPSA recommended outpatient treatment.

Applying State v. Hernandez, 311 N.W.2d 478, 481 (Minn.1981), the court sentenced appellant on October 24, 1991, to twenty-one months stayed on the first offense, twenty-six months stayed on the second offense, and thirty-four months executed on the third offense. The sentencing court stated that it was first inclined to execute the sentence:

I was going to commit [appellant] and I just am not willing to allow him back on the street in three years or two years without at least attempting what I consider a very structured treatment program.

The court, however, granted appellant's motion for a dispositional departure and placed him on probation for 15 years. The court imposed several conditions on appellant's probation, including that he enter and complete inpatient treatment at Alpha.

Alpha's residential treatment program requires an average of 29 months to complete. For eighteen of those months, the patient resides at Alpha, which is not a locked facility. The eleven month post-residential phase involves community integration and aftercare. The estimated cost of the residential treatment phase is approximately $34,500, or $63 per day for eighteen months.

While some counties fund treatment at Alpha, Alpha's intake director informed the court at the conclusion of the sentencing hearing that it should not assume that Carver County would fund appellant's treatment at Alpha. The court asked: "[t]hen what happens? Then are we back here? What happens if the county does not want to pay for this?" Alpha's intake director stated that typically the defendant goes to prison or must pay for the treatment himself.

The court reviewed the sentence on December 3, 1991, on motion from appellant's parole officer for possible execution of the stayed sentence. The parole officer informed the court that Carver County had no funding for sex offender treatment. The court stated:

I guess I'll say it one more time because evidently the prosecutor didn't hear me the last time, but treatment continues to be an important issue in my mind and, you know, prison certainly may redress the past harm but it certainly * * * doesn't do much * * * for a safe future.

The court required that the parties continue to explore financing options.

Appellant attempted to obtain funding from Carver County. However, Carver County refused to fund appellant's treatment at Alpha. Appellant challenged the county's denial of funding to the state Commissioner of Human Services. In affirming the county's denial, the Commissioner stated:

While petitioner would find such a service desirable and an attractive alternative to a prison sentence, the county is under no obligation to fund or otherwise arrange for such a service.

On April 17, 1992, the court again reviewed appellant's sentence. Both the state and appellant presented evidence regarding the latest attempts to fund treatment at Alpha. The court revoked appellant's probation after it concluded that all funding options had been exhausted and appellant neither had funds nor insurance to cover the costs himself. Appellant explained that he sought admission into the outpatient treatment program at the University of Minnesota. However, the court clearly conveyed that outpatient treatment was not appropriate for appellant. In committing the appellant to the Commissioner of Corrections, the court stated:

I hope you avail yourself of whatever treatment is available [in prison]. I don't know what it is. It was the one small bit of assurance that I thought I could give to the victims and the parents that some other family might not be here in two years suffering as they have for some actions such as you may do without treatment. I'm not so sure I can give them that assurance today.

Appellant expressed concern that treatment would not be available in prison because of his shorter sentence and the waiting periods to enter sex offender treatment. Appellant's probation officer advised the court that treatment might be available at Stillwater State Prison. The court stayed the commitment order and investigated the possibility of immediate treatment for appellant at Stillwater. The court confirmed that a treatment program was available to appellant and that he would be given priority to enter and complete the program during the period of his incarceration. On April 30, 1992, the court lifted the stay of commitment.

ISSUES
1. Did the sentencing court abuse its discretion and violate appellant's rights to

due process and equal protection when it revoked appellant's probation, originally conditioned upon appellant's completion of sex offender treatment, where the county would not fund and appellant could not afford to pay for the treatment himself?

2. Should this court grant appellant's motion to strike a portion of respondent's appendix?
ANALYSIS

I.

Appellant claims that the sentencing court abused its discretion when it revoked his probation and that the revocation violated the Equal Protection and Due Process Clauses of the United States and Minnesota Constitutions.

A.

The sentencing court has broad discretion in determining whether sufficient evidence exists to revoke probation. State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980). Absent a clear abuse of discretion, this court will not reverse the sentencing court's decision to revoke probation. Id. We find no abuse of discretion.

Under Minn.Stat. § 609.135 (1990) except as otherwise provided:

any court may stay imposition or execution of sentence and (a) may order intermediate sanctions without placing the defendant on probation, or (b) may place the defendant on probation with or without supervision and on the terms the court prescribes, including intermediate sanctions when practicable.

"Intermediate sanctions" include mental health treatment. Id. A stay of execution of a sentence may be revoked "[w]hen it appears that the defendant has violated any of the conditions of probation or intermediate sanction" or has engaged in other misconduct. Minn.Stat. § 609.14, subd. 1 (1990). If the court finds grounds to revoke a sentence, it may "continue such stay and place defendant on probation or order intermediate sanctions * * * or order execution of the sentence previously imposed." Minn.Stat. § 609.14, subd. 3(2) (1990).

Traditionally, when a sentencing court revokes probation, it must do so only after completing a three-step analysis:

[T]he 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 need for confinement outweighs the policies favoring probation.

Austin, 295 N.W.2d at 250.

The rationale of Austin is not fully applicable in this case. The sentencing court revoked appellant's probation for reasons other than appellant's intentional violation of a condition of probation. 1 Recent case law is instructive on the question of whether revocation may rest upon nonintentional conduct of the probationer. In State v. Thompson,...

To continue reading

Request your trial
20 cases
  • Arcadia Development Corp. v. City of Bloomington
    • United States
    • Minnesota Court of Appeals
    • August 13, 1996
    ...under state equal protection clause same as that applied to claims brought under federal equal protection clause); State v. Morrow, 492 N.W.2d 539, 547 (Minn.App.1992) (constitutional challenge under either due process or equal protection of federal or state constitutions raise similar Arca......
  • Davis v. Commissioner of Public Safety
    • United States
    • Minnesota Court of Appeals
    • November 30, 1993
    ...of the federal and state constitution are identical. Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988); State v. Morrow, 492 N.W.2d 539, 547 (Minn.App.1992). We follow this precedent and decline to expand state rights further in this case. III. Procedural Due Process The distr......
  • State v. Braaten
    • United States
    • Idaho Court of Appeals
    • August 8, 2007
    ...603 (Harlan, J., concurring)). A claim very similar to Braaten's was considered by the Minnesota Court of Appeals in State v. Morrow, 492 N.W.2d 539 (Minn.Ct. App.1992). There, a defendant who had been convicted of various sex crimes was placed on probation on the condition that he successf......
  • State v. Cannady, No. A05-811 (MN 4/18/2006)
    • United States
    • Minnesota Supreme Court
    • April 18, 2006
    ...under the Minnesota Constitution is identical to the due process guaranteed under the federal constitution." State v. Morrow, 492 N.W.2d 539, 546-47 (Minn. App. 1992). Because there is no indication that the particular facts or circumstances of this case warrant an interpretation of the sta......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT