This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0203
State of Minnesota,
Respondent,
vs.
Alton Dominique Finch,
Appellant.
Filed September 15, 2014
Affirmed
Bjorkman, Judge
Hennepin County District Court
File No. 27-CR-13-4158
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the revocation of his probation, arguing (1) the district court
erred by denying his motion to remove for cause without referring the motion to the chief
judge of the district and (2) the need for confinement does not outweigh the policies
favoring probation. We affirm.
FACTS
On February 8, 2013, appellant Alton Finch was charged with second-degree
assault. His case was assigned to a district court judge and he filed a notice to remove as
of right pursuant to Minn. R. Crim. P. 26.03, subd. 14(4). The district court judge
referred the motion to the chief judge, who denied the motion as untimely because the
district court judge had already presided over a motion in the case. The chief judge then
treated the motion as seeking removal for cause, and denied the motion because there had
been no rulings in the case. Finch was convicted of second-degree assault following a
stipulated-facts court trial. The district court granted a dispositional departure, imposing
a stayed 36-month sentence.
As a condition of probation, Finch was ordered to serve 365 days in the Hennepin
County Adult Corrections Facility (ACF). On August 19, 2013, he left the ACF on an
approved medical furlough, and did not return or contact his probation officer regarding
his whereabouts. A warrant was issued for his arrest. On September 2, Finch turned
himself in to authorities, and told his probation officer that he had left Minnesota to go to
Wisconsin for a family funeral. As a result of his actions, Finch was charged with and
pleaded guilty to felony escape from custody. The day before his probation-violation
hearing, Finch filed a motion to disqualify the district court judge on the grounds of bias
and partiality. The district court judge denied the motion without referring it to the chief
judge and found that Finch had violated his probation terms. After determining that the
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need to confine Finch outweighs the policies favoring probation, the district court
revoked Finch’s probation, and executed his prison sentence. Finch appeals.
DECISION
I. The district court did not err by declining to refer Finch’s motion to remove
for cause to the chief judge of the district.
A motion to remove a judge for cause is governed by the rules of criminal
procedure. Hooper v. State, 680 N.W.2d 89, 93 (Minn. 2004). Under the rules, “[a]
judge must not preside at a trial or other proceeding if disqualified under the Code of
Judicial Conduct.” Minn. R. Crim. P. 26.03, subd. 14(3). A request to disqualify a
district court judge for cause “must be heard and determined by the chief judge of the
district.” Id. The code requires a judge to “disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.” Minn.
Code Jud. Conduct R. 2.11(A). The code defines “impartial” and “impartiality” as the
“absence of bias or prejudice in favor of, or against, particular parties or classes of
parties, as well as maintenance of an open mind in considering issues that may come
before a judge.” State v. Pratt, 813 N.W.2d 868, 876 (Minn. 2012) (quotation omitted).
We review de novo whether a judge is disqualified from presiding over a case. In re
Jacobs, 802 N.W.2d 748, 750 (Minn. 2011).
We initially note that Finch did not seek prohibition, which is the proper remedy
for challenging the denial of a motion to remove a judge for cause. See State v. Laughlin,
508 N.W.2d 545, 547 (Minn. App. 1993) (“Prohibition is the appropriate remedy to
pursue when a motion or notice to remove for cause has been denied.” (citing State v.
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Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991)); see also Minn. R. Civ. App.
P. 121.01 (permitting an oral petition for writ of prohibition in an emergency situation);
Minn. R. Crim. P. 28.01, subd. 2 (providing that the Minnesota Rules of Civil Appellate
Procedure govern appellate procedure unless the rules of criminal procedure direct
otherwise). But even if we overlook Finch’s technical error, his argument fails on the
merits for two reasons. See State v. Pflepsen, 590 N.W.2d 759, 764 (Minn. 1999) (stating
that the court of appeals has authority to suspend technical requirements of the rules).
First, by presenting his motion to the district court judge he sought to remove,
Finch waived his right to a hearing before the chief judge. We have recognized that,
despite the clear directive of rule 26.03, a party is entitled to bring his disqualification
motion before the judge who is the subject of the motion. Poole, 472 N.W.2d at 197
(holding that appellant who presented motion to remove for cause to district court judge
he sought to remove had not waived his right to seek prohibition by bringing motion
before challenged judge instead of chief judge). Finch chose to do just that. He directed
his notice of motion and motion to the district court judge, requesting an order “by the
Court, recusing herself from hearing this case.” Finch also moved “[i]n the alternative”
for an order “by the Court, directing the Chief Judge of the District Court to make a
determination as to whether this Court should hear the above encaptioned case.” By
phrasing his relief in the alternative, Finch invited the district court to hear the motion.
Moreover, he did not seek review by the chief judge between November 1, when the
district court denied his motion, and November 6, when the probation-violation hearing
concluded. On this record, we conclude that Finch waived his right to bring his removal
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motion to the chief judge. See State v. Matthews, 779 N.W.2d 543, 553 (Minn. 2010)
(“Failure to include all defenses, objections, issues, and requests in a motion constitutes a
waiver.” (quotation omitted)); State v. Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002)
(explaining that an attorney may waive certain nonfundamental rights, including
decisions pertaining to the conduct of trial); State v. Wells, 638 N.W.2d 456, 461 (Minn.
App. 2002) (holding defense counsel waived speedy trial requirement by agreeing to
omnibus hearing date outside of time limit provided for in rules of criminal procedure),
review denied (Minn. Mar. 19, 2002).
Second, Finch’s motion to remove for cause fails on the merits. We determine
whether a judge’s impartiality may reasonably be questioned by objectively examining
the relevant circumstances and considering “whether a reasonable examiner, with full
knowledge of the facts and circumstances, would question the judge’s impartiality.”
Jacobs, 802 N.W.2d at 752-53. Finch argues that the district court judge should have
disqualified herself due to bias. He first points to the district court judge’s request to hear
his probation-violation hearing as indicative of a personal interest in the outcome of the
case. We disagree. A judge’s impartiality cannot be questioned because they presided
over more than one aspect of a case. See, e.g., Poole, 472 N.W.2d at 196-97 (holding no
partiality based on the mere fact that a trial judge considering a suppression motion
related to a search warrant is the same judge that issued the warrant). Hennepin County
district court policies expressly permit sentencing judges to preside over probation-
violation hearings at their request. That the district court judge both sentenced Finch and
determined whether he violated his probation terms is not sufficient to show partiality or
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bias. See Hannon v. State, 752 N.W.2d 518, 522 (Minn. 2008) (stating that adverse
rulings do not, in and of themselves, demonstrate judicial bias).
Finch next asserts that the district court judge’s statements at the probation-
violation hearing, regarding the sentencing departure and the court’s disappointment that
Finch violated his probation, reflect bias. But the district court made these statements at
the time it revoked Finch’s probation. Because this argument was not presented to the
district court in connection with the motion to remove, we will not consider it. Roby v.
State, 547 N.W.2d 354, 357 (Minn. 1996) (declining to review an argument for the first
time on appeal).
II. The district court did not abuse its discretion by revoking Finch’s probation
because clear and convincing evidence demonstrates that the need for
confinement outweighs the policies favoring probation.
A district court has broad discretion to determine whether there is sufficient
evidence to revoke probation and will not be reversed absent an abuse of discretion.
State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). The state has the burden of proving
the offender violated his probation terms by clear and convincing evidence. Minn. R.
Crim. P. 27.04, subd. 3.
Before revoking probation, the 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 need for confinement outweighs the policies favoring
probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In assessing the third
factor, the district court must balance the offender’s interest in remaining at liberty
against the state’s interest in rehabilitation and public safety, considering whether:
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(i) Confinement is necessary to protect the public from
further criminal activity by the offender; or
(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 251.
Finch does not dispute that the first two Austin factors were satisfied, but argues
that there is not clear and convincing evidence that the need for confinement outweighs
the policies favoring probation. We are not persuaded. The district court found that
Finch needs correctional treatment that can be most effectively provided in a confined
setting and that it would unduly depreciate the seriousness of his violation if his probation
were not revoked. In making these findings, the district court determined that Finch left
ACF “under false pretenses,” failed to communicate his desire to attend a funeral in
Wisconsin to ACF representatives, did not contact his probation officer, and remained at
large for approximately two weeks. The district court rejected Finch’s testimony that he
attempted to contact his lawyer and probation officer while he was in Wisconsin as not
credible, and found that Finch falsely testified that he asked ACF staff for permission to
attend the funeral. While Finch is correct that his probation officer recommended against
revocation, the officer had never met Finch before the violation, and he testified that he
could not express any opinion about whether Finch would benefit from incarceration or
probation because of his limited exposure and time spent with Finch. The record amply
supports the district court’s findings that the need for confinement outweighs the policies
favoring probation.
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Finch characterizes the district court’s decision to revoke his probation as a
“reflexive reaction to an accumulation of technical violations.” See id. at 251 (quotation
omitted). But committing a new felony, leaving a court-ordered placement and the state
without permission, and failing to maintain contact with probation officers are not mere
technical violations. The transcript reflects that the district court considered the
testimony of Finch, ACF staff, and the probation officer assigned to work with Finch
after he completed his time at ACF. Because the district court considered all of the
circumstances of Finch’s violation and made the required findings, we conclude the court
did not abuse its discretion by revoking Finch’s probation.
Affirmed.
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