State v. Osborne

732 N.W.2d 249, 2007 Minn. LEXIS 305, 2007 WL 1630249
CourtSupreme Court of Minnesota
DecidedJune 7, 2007
DocketA05-988
StatusPublished
Cited by23 cases

This text of 732 N.W.2d 249 (State v. Osborne) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Osborne, 732 N.W.2d 249, 2007 Minn. LEXIS 305, 2007 WL 1630249 (Mich. 2007).

Opinions

OPINION

ANDERSON, G. Barry, Justice.

Appellant Ricky A. Osborne asserts that the district court abused its discretion when it revoked his probation. The court based its revocation decision on Osborne’s daily marijuana use, juvenile record, and failure to contact probation authorities. The court of appeals affirmed. We affirm.

In 2001, the Rochester Police Department conducted numerous controlled buys of crack cocaine from Osborne. Two individuals also reported that Osborne and an accomplice robbed them of $700 at gunpoint. Osborne, then 18 years old, was certified as an adult and charged with racketeering, conspiracy to commit a controlled substance crime in the first degree, controlled substance crime in the third degree, two counts of aggravated robbery in the first degree, and violation of Minn. Stat. § 624.713 (2000) (forbidding certain persons from possessing pistols or semiautomatic military-style assault weapons).

Osborne admitted to selling crack cocaine and to conspiring with others to sell cocaine. He also admitted to the robbery. He pleaded guilty to the two controlled substance offenses and to an amended charge of second-degree assault.

Pursuant to the plea agreement, the district court sentenced Osborne to concurrent 27- and 36-month sentences on, respectively, the third-degree controlled substance and assault charges, and stayed the presumptive 122-month sentence on the conspiracy charge, placing Osborne on 30 years of probation. The remaining charges were dismissed. The parties crafted this somewhat unusual sentence, which the district court accepted, because Osborne was a juvenile when the crimes were committed and because Osborne’s father was a driving force behind Osborne’s involvement in the crimes. In addition to standard behavior and reporting requirements, Osborne’s probation included abstinence from controlled substances and testing for drug and alcohol use.

After Osborne served roughly 12 months of his sentence, he was placed on supervised release on December 1, 2003. While in prison, he completed a program that included chemical dependency treatment. Osborne’s supervised release was revoked on February 17, 2004, for failure to keep his supervised release agent informed of his residence and failure to abstain from [252]*252mood-altering chemicals. He returned to prison for 150 days.

At a subsequent probation violation hearing on March 4, 2004, Osborne’s supervising agent testified that Osborne had changed his residence without informing her, that his efforts to find employment were minimal, and that he had tested positive for drug use. The agent also testified that she was unaware that Osborne was on both probation and supervised release, and that therefore no probation agreement was ever completed. The district court aborted the revocation proceeding, holding that because no probation contract was signed, there could not be clear and convincing evidence of a violation. Osborne’s 122-month sentence thus remained stayed.

On July 8, 2004, Osborne completed the 150-day sentence and was again placed on supervised release. The Department of Corrections granted his request to move to Illinois, and his probation officer transferred his probation file to the probation department in Cook County. On January 4, 2005, Illinois rejected Osborne’s probation because he refused to report to the Cook County Probation Department. Osborne claims that he attempted on numerous occasions to contact Illinois probation authorities, but his phone calls were never returned. The Illinois authorities claim that Osborne failed to return phone messages and attend a home visit and that Osborne never attempted to contact the Cook County Probation Department. After learning that Illinois had rejected supervision of Osborne, Osborne’s probation officer in Minnesota ordered Osborne to return to Minnesota, which he did on January 13, 2005.

On February 3, 2005, at a district court hearing, Osborne admitted that during his supervised release he used marijuana on a daily basis and that he knew at the time that this violated his probation.1 Osborne asked to remain on probation because he had refrained from committing new offenses for the longest period of his life (July 2004 through January 2005), he had been through a treatment program in prison and realized drugs were ruining his life, and he was ready to participate in an inpatient treatment program and address his chemical dependency problem. Osborne conceded that he had prior opportunities to benefit from chemical dependency services and took responsibility for his continued use, but asserted that he was now ready to begin treatment. The district court continued the hearing to allow Osborne and the state to investigate why Osborne never made contact with Illinois probation authorities.

The district court resumed the hearing on February 17, 2005. Osborne offered no further explanation of what happened in Illinois. Following arguments, and after continuing the hearing to review the certification report from the juvenile file, the district court revoked the stay of execution. The court found that Osborne violated probation by continuing to use chemicals and failing to cooperate with the transfer to Illinois, and that these violations were intentional. The court recognized that the marijuana use by itself appeared minor, but found that Osborne posed a high risk to reoffend in light of his extensive juvenile history and the services already provided.

Osborne appealed the revocation, arguing that he should have received probation services, including a program that addressed chemical dependency, before his probation was revoked. The court of appeals affirmed in an order opinion, holding [253]*253that Osborne failed to establish that the district court abused its discretion. Osborne appealed to this court, and we granted his petition for review.

I.

A 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. Modtland, 695 N.W.2d 602, 605 (Minn.2005) (quotation marks omitted). The 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 or she cannot be counted on to avoid antisocial activity.” State v. Austin, 295 N.W.2d 246, 251 (Minn.1980) (quotation marks omitted). “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.” Id. at 250. Before revoking a probationary sentence, a district court must: (1) specifically identify the condition or conditions violated; (2) find that the violation was intentional or inexcusable; and (3) find that the policies favoring probation no longer outweigh the need for confinement. Id.

The district court made the required Austin findings at the revocation hearing and in the subsequent order. Osborne does not deny that he used marijuana daily or contend that this use was not intentional, but argues that the court erred in finding, on the third Austin factor, that the need for confinement outweighed the policies favoring probation.

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Bluebook (online)
732 N.W.2d 249, 2007 Minn. LEXIS 305, 2007 WL 1630249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-osborne-minn-2007.