This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1350
State of Minnesota,
Respondent,
vs.
Marc Darius Venton,
Appellant.
Filed March 9, 2015
Reversed
Connolly, Judge
Ramsey County District Court
File No. 62-CR-09-6924
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Shacka, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Worke, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
In this probation-revocation appeal, appellant argues that the district court erred by
revoking his probation for failing to complete chemical-dependency treatment where
treatment was never imposed as a condition of probation and where the need for
confinement does not outweigh the policies favoring probation. We reverse.
FACTS
On April 10, 2009, appellant Marc Darius Venton was charged with second-
degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1
(2008), after stabbing a man in the neck. Appellant pleaded guilty to the charged offense
and was sentenced to 57 months in prison, stayed for seven years, which was later
amended to 51 months in prison, stayed for seven years. At appellant’s sentencing
hearing, the district court (the sentencing court) orally imposed the following conditions
of probation: (1) serve six months in county jail, (2) “cooperate with all the usual
requirements of [p]robation [and] make sure your Probation Officer knows where you are
and you know what’s expected of you,” (3) pay fine and fees in the amount of $181,
(4) pay restitution to the victim, and (5) abide by a no-contact order. Appellant’s
Criminal Judgment/Warrant of Commitment form (warrant of commitment form) states
that appellant must serve six months in county jail, pay the above-listed fines and
restitution, and follow the “usual terms and conditions of probation.”
On December 10, 2010, appellant appeared for his first of three probation-
violation hearings. The state alleged that appellant violated his probation by being
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convicted of misdemeanor theft, which appellant admitted. The district court continued
appellant’s probation under the same terms and conditions that had previously been
imposed by the sentencing court.
On November 21, 2011, appellant appeared for his second probation-violation
hearing. Appellant admitted that he violated the terms and conditions of his probation by
obtaining another conviction of misdemeanor theft and by failing to complete chemical-
dependency aftercare treatment. The district court found that appellant violated his
probation by failing to remain law abiding and by failing to complete aftercare and
ordered him to serve 90 days in jail, after which he was to continue probation under the
same terms and conditions that the sentencing court originally imposed.
On May 8, 2014, appellant appeared for his third probation-violation hearing. He
was accused of violating the conditions of his probation by (1) failing to complete
chemical-dependency treatment, (2) refusing to resume chemical-dependency treatment,
(3) failing to abstain from mood-altering substances, and (4) failing to report for a
urinalysis.1 Appellant admitted that he failed to complete chemical-dependency
treatment but would not admit that completing treatment was a condition of his probation.
The district court found that appellant violated a condition of his probation for failing to
complete chemical-dependency treatment after the following exchange:
THE COURT: But, you didn’t think that was a requirement
of your stay of execution of a prison sentence?
APPELLANT: No, ma’am.
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Appellant’s probation officer withdrew the allegation that appellant failed to report for
urinalysis, and the district court dismissed the allegation that appellant refused to resume
chemical-dependency treatment.
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THE COURT: Well, I acknowledge that your sentencing
took place a long time ago. . . . But, the conditions of
probation included first of all that you had a dispositional
departure. That you were to follow all instructions of
probation, . . . and it’s the court’s understanding that you were
to complete chemical dependency treatment. . . . Are you
denying that you were directed to chemical dependency
treatment?
APPELLANT: Yeah, I mean, all she asked me was what was
I going to do.
...
THE COURT: So, you’re at least acknowledging that you
had entered into it twice and not completed it, right?
APPELLANT: Yes, ma’am.
THE COURT: So, if it’s my expectation that your
completion of treatment would have been a condition of the
stay of execution of your sentence, I accept that as an
admission.
Subsequently, the district court revoked appellant’s probation, executed his 51-month
sentence and stated:
I think the record that was made today shows the violations
and your failure to follow through with treatment and your
failure to fully cooperate with probation. You have admitted
that you failed to complete chemical dependency treatment at
least twice with your admission today. And that you failed to
abstain from mood altering substances.
...
I think that we have identified the specific conditions that you
violated, specifically not entering and completing treatment
and being successful in completing programing. I think your
violations were intentional and not excusable. I think the
need for confinement outweighs the policies favoring
probation. I think you basically have been trying to figure out
ways to avoid following the rules of probation. . . . I think
your need for correctional treatment can most effectively be
provided if you are confined. And I think it would unduly
depreciate the seriousness of the violations if probation were
not revoked.
This appeal follows.
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DECISION
Appellant argues that “the district court abused its discretion by revoking his
probation for a condition that had not been ordered, and that the need for confinement
does not outweigh the policies favoring probation.” We agree.
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. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). At a probation-
revocation hearing, the district court has the duty to develop the record, and the state has
the burden of proving the probation violation by clear-and-convincing evidence. State v.
Ornelas, 675 N.W.2d 74, 81 n.6 (Minn. 2004); 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.”
Austin, 295 N.W.2d at 250.
A. The district court erred by revoking appellant’s probation for a violation of a
condition that had not been imposed.
Appellant first argues that “[t]he district court erred and violated [a]ppellant’s due
process rights when it revoked [a]ppellant’s probation for [a] violation of a condition that
the court had not imposed.” We agree.
The state concedes that the successful completion of chemical-dependency
treatment was not specifically ordered by the sentencing court, but argues that appellant
failed to raise this issue at his probation-violation hearing, and therefore, waived the issue
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on appeal. We disagree. In Ornelas, the Minnesota Supreme Court discussed a similar
issue. The supreme court decided that although the appellant did not argue in district
court or on appeal that a certain condition of probation was not imposed, “the first Austin
factor requires us to consider the specific condition designated to have been violated.”
675 N.W.2d at 79. “Inherent in our consideration of the specific condition designated as
having been violated is the question of whether the condition was actually imposed as a
condition of probation.” Id. “[T]o properly consider the Austin factors, the interests of
justice require that we determine whether the [probation] condition was actually
imposed,” even if appellant did not raise the issue below. Id.
“The imposition of sentences, including determining conditions of probation is
exclusively a judicial function that cannot be delegated to executive agencies.” Id. at 80
(quotation omitted). When sentencing a defendant, a court shall “[s]tate precisely the
terms of the sentence.” Minn. R. Crim. P. 27.03, subd. 4(A). “If lawful conduct could
violate the defendant’s terms of probation, the [district] court must tell the defendant
what that conduct is.” Id., subd. 4(E)(3). The district court may not revoke an offender’s
probation for violating a condition of probation unless the violated condition was actually
imposed by the district court. Ornelas, 675 N.W.2d at 79-80.
We discussed a similar but distinguishable issue in State v. Bradley, 756 N.W.2d
129 (Minn. App. 2008). In Bradley, the appellant challenged the district court’s decision
that she violated probation by refusing to attend inpatient treatment as recommended by a
court-ordered health assessment. Id. at 131. At sentencing, the district court sentenced
the appellant and placed her on probation for two years with conditions, including that
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she submit to a chemical-dependency evaluation and follow the recommendations and
sign and abide by a standard probation agreement. Id. The appellant signed the
probation agreement, which included the specific condition that she submit to random
drug screens if requested by law enforcement. Id.
On appeal, the appellant argued that the district court improperly delegated its
sentencing authority when it ordered appellant to undergo a chemical-health assessment
and follow recommendations that were unknown to the court at the time of sentencing.
Id. We concluded:
When the district court ordered appellant to undergo a
chemical-health assessment and follow all recommendations
of the assessment once treatment was recommended,
appellant’s participation in that treatment was mandated by
the court’s order. The district court simply delegated to the
chemical-health assessor the expert determination as to
whether appellant needs treatment and, if so, the type or level
of appropriate treatment. But the district court, not the
chemical-health assessor, imposed the condition that
appellant undergo the chemical-health assessment and attend
treatment, if recommended.
Id. at 133. But, unlike the situation in Bradley, in this case, the district court did not
order appellant to undergo a chemical-dependency assessment and follow the
recommendations of the assessor or complete chemical-dependency treatment as a
condition of probation. At appellant’s sentencing hearing, the sentencing court orally
ordered appellant to “cooperate with all the usual requirements of [p]robation [and] make
sure your Probation Officer knows where you are and you know what’s expected of you.”
Similarly, appellant’s warrant of commitment form stated that appellant must follow the
“[u]sual terms and conditions of probation.” Although the sentencing court could have
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checked a box on the warrant of commitment form stating that appellant must complete
chemical-dependency treatment, this box was not marked, indicating that this was not a
condition of appellant’s probation. Additionally, at his 2010 and 2011 probation-
violation hearings, the district court continued appellant’s probation without adding any
new terms or conditions of probation. Therefore, we conclude that the sentencing court
did not order appellant to complete chemical-dependency treatment as a condition of his
probation.
The state argues that even if the sentencing court did not specifically order
appellant to complete chemical-dependency treatment, appellant believed that this was a
condition of his probation. We disagree. At his third probation-violation hearing,
appellant stated that completing treatment was not a condition of his probation. Even if
he had conceded this fact, “[t]he fact that a probationer is aware of or believes something
to be a condition of probation does not necessarily make it so.” Ornelas, 675 N.W.2d at
80. Consequently, we conclude that the district court abused its discretion by revoking
appellant’s probation based on a probation condition that was never imposed by the
sentencing court.
B. Other grounds for revocation.
Appellant argues that “[t]he district court abused its discretion by revoking [his]
probation where his only valid violation was his use of intoxicants.” We agree.
As stated above, under the first Austin factor, the district court must designate the
specific condition or conditions of probation that were violated. Austin, 295 N.W.2d at
250. At appellant’s probation-violation hearing, the state alleged that appellant violated
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his probation by failing to abstain from mood-altering substances. Appellant admitted
that he used marijuana mixed with crack cocaine on March 25, 2014, and April 1, 2014.
The district court found that appellant failed to meet the conditions of his probation by
failing to abstain from mood-altering chemicals. But the sentencing court did not order
appellant to abstain from mood-altering substances in its original sentencing order. In
fact, although appellant’s warrant of commitment form contains a space for the
sentencing court to order such a condition, it was not marked in this case. And at
appellant’s sentencing hearing, the sentencing court ordered appellant to “cooperate with
all the usual requirements of probation” without ordering any specific conditions of
probation. Because “[t]he imposition of sentences, including determining conditions of
probation is exclusively a judicial function that cannot be delegated to executive
agencies,” Ornelas, 675 N.W.2d at 80 (quotation omitted), we conclude that the
sentencing court delegated too much authority to appellant’s probation officer to impose
appellant’s terms and conditions of probation.
The state argues that appellant violated the conditions of his probation by using
mood-altering substances because this act constitutes a failure to remain law abiding. We
disagree. When the district court sentenced appellant, it did not orally order appellant to
remain law abiding and did not check a box on the warrant of commitment form stating
that appellant must remain law abiding, indicating that this condition was not imposed.
Therefore, we conclude that the district court abused its discretion by revoking
appellant’s probation based on a probation condition that was never imposed by the
sentencing court. Additionally, appellant was not charged with or convicted of any crime
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for this act. Appellant was convicted of disorderly conduct in 2013, which would
constitute a failure to remain law abiding, but the state did not allege that appellant
violated the terms and conditions of his probation based on this conviction, and the
district court did not designate this as a specific condition that appellant violated. We
conclude that the district court abused its discretion by revoking appellant’s probation
based on the allegations that he used mood-altering substances. Consequently, we
reverse the district court’s order revoking appellant’s probation because none of the
alleged conditions of probation were actually imposed by the sentencing court.
Reversed.
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