7This opinion will be unpublished and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
A14-2208
State of Minnesota,
Respondent,
vs.
James Brandon Ponthieux,
Appellant.
Filed July 13, 2015
Affirmed
Larkin, Judge
Itasca County District Court
File No. 31-CR-11-1530
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Muhar, Itasca County Attorney, Matti R. Adam, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Eric I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
In this probation-revocation appeal, appellant argues that the district court erred by
failing to explain why it refused to execute only one of appellant’s concurrent stayed
prison terms for four counts of first-degree criminal sexual conduct, as appellant
proposed, instead of his entire 360-month sentence. Because the district court satisfied
the applicable caselaw requirements when revoking appellant’s probation and did not
otherwise abuse its broad discretion, we affirm.
FACTS
Respondent State of Minnesota charged appellant James Brandon Ponthieux with
eight counts of first-degree criminal sexual conduct in one criminal complaint, alleging
that he had sex with his roommate’s 14-year-old daughter on four occasions. Ponthieux
reached a plea agreement with the state, under which he pleaded guilty to four counts of
first-degree criminal sexual conduct in exchange for the state’s agreement to support a
stayed prison sentence, even though the sentencing guidelines called for an executed
sentence. In January 2012, the district court sentenced Ponthieux to four concurrent
prison terms of 144, 180, 360, and 360 months. Pursuant to the plea agreement, the
district court granted a downward dispositional departure, stayed execution of each term
of imprisonment for ten years, and placed Ponthieux on probation. The district court
ordered one set of probationary conditions for all of the stayed prison terms. Those
conditions required Ponthieux to complete sex-offender treatment, have no unsupervised
contact with minor females, and not possess any type of pornographic material.
2
In August 2013, Ponthieux violated the conditions of probation by failing to
complete or comply with the requirements of sex-offender treatment and by having
unsupervised contact with a minor female. The district court imposed a sanction of 365
days in jail and continued Ponthieux on probation.
In April 2014, Ponthieux’s probation officer filed a probation-violation report,
alleging that Ponthieux once again violated the conditions of probation by failing to
complete sex-offender treatment and by having unsupervised contact with a minor. In
May, the probation officer filed an addendum to the report, alleging that Ponthieux
possessed pornographic or sexually explicit material.
Ponthieux admitted that he violated probation by having unsupervised contact with
a minor. After an evidentiary hearing, the district court found that Ponthieux also
violated probation by failing to complete sex-offender treatment and by possessing
pornography. The district court found that all three violations were intentional and
inexcusable.
The state argued for revocation of probation and execution of Ponthieux’s entire
360-month sentence. Ponthieux asked the district court to execute only one of his stayed
prison terms. Specifically, Ponthieux argued that if he served a 144-month term of
imprisonment, he could complete sex-offender treatment in custody, serve a “significant
sentence,” and upon release would “still have a significant sentence hanging over his
head.”
The district court noted that it had been hesitant to grant a downward dispositional
departure because the presentence investigator opposed probation and because Ponthieux
3
displayed “limited, at best, acceptance of responsibility.” The district court also noted
that Ponthieux had been resistant, argumentative, and manipulative throughout the case.
The district court highlighted the seriousness of Ponthieux’s treatment failure and stated
that his contact with minors was “even more serious.” The district court noted that
Ponthieux “hasn’t even tried to comply with” the no-contact-with-minors condition. The
district court acknowledged that its “only hesitation” was that “360 months is a really
long time,” but it nonetheless indicated that the decision to revoke was not “a close call.”
The district court explained its decision as follows:
I do feel that, based on all the history of this case, that the
need for confinement outweighs the presumption in favor of
continued probation, that [Ponthieux] needs correctional
treatment because the treatment without the correctional
aspect of it is clearly not working, and would unduly
depreciate the seriousness of the offenses, particularly the
failure of treatment and even more so, as I said earlier, the
contact with minors, just flaunting that condition of probation
and maybe about the most important condition of probation,
that he is a public safety risk and that he is not amenable to
probation.
The bottom line is, I cannot risk another [minor
victim], [I] just can’t do it.
The district court revoked Ponthieux’s probation and executed his entire sentence.
Ponthieux appeals.
DECISION
Ponthieux argues that “[t]he error below was the absence of findings on the record
explaining why the district court rejected [his] proposed disposition of revoking a single
144-month sentence as opposed to the revocation of all four sentences totaling 360
4
months.” Ponthieux further argues that “remand is required under Modtland because of
the absence of explicit findings on why the court’s goals could not be served by [his]
proposed disposition.”
In Modtland, the supreme court reaffirmed its holding in State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980), “that district courts must make the following three
findings on the record before probation is revoked.” State v. Modtland, 695 N.W.2d 602,
606 (Minn. 2005).
First, courts must designate the specific condition or
conditions of probation the defendant has violated. Second,
courts must find the violation was inexcusable or intentional.
Once a court has made findings that a violation has occurred
and has found that the violation was either intentional or
inexcusable, the court must proceed to the third Austin factor
and determine whether the need for confinement outweighs
the policies favoring probation.
Id. (citations omitted).
The supreme court stated that district courts “should refer” to the following
American Bar Association Standards for Criminal Justice:
Revocation followed by imprisonment should not be the
disposition . . . unless the court finds on the basis of the
original offense and the intervening conduct of the offender
that:
(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.
5
Id. at 607 (quoting Austin, 295 N.W.2d at 251). The supreme court explained that the
“requirement that courts make findings under the Austin factors assures that district court
judges will create thorough, fact-specific records setting forth their reasons for revoking
probation.” Id. at 608.
“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.” Id. at 605 (quotation omitted). But whether the district court made required
findings is a question of law, which is reviewed de novo. Id.
As support for reversal, Ponthieux relies on State v. Johnson, in which this court
reversed the district court’s decision to revoke probation because the decision was
heavily based on the district court’s misinterpretation of law. 743 N.W.2d 622, 626
(Minn. App. 2008). In Johnson, the district court reasoned that “[b]ecause Minnesota
Statutes specifically limit the amount of time a district court may order a [d]efendant to
serve in jail as a condition of probation to one year,” it had “no choice but to revoke . . .
probation.” Id. at 624-25. On appeal, this court concluded that the applicable statute
“neither states nor implies that there is a limit to the cumulative amount of local jail time
a district court may impose as a consequence of probation violations” and that because
“the district court relied so heavily on its erroneous interpretation of [the statute] when
making its decision,” remand was necessary “for resentencing in light of the correct
interpretation” of the statute. Id. at 626.
Ponthieux argues, “[a]s in Johnson, the district court below could have declined to
execute only a single sentence under the erroneous presumption that it could not do so.”
6
But the record here does not suggest that the district court believed it could not revoke
only one of Ponthieux’s stayed prison terms. Johnson is therefore distinguishable.
Ponthieux does not cite any other authority to support his argument that the district
court failed to comply with Austin and Modtland or otherwise made inadequate findings
to support revocation of his entire sentence. We are not aware of any authority requiring
a district court to make Austin findings regarding each count-based component of a
sentence that is comprised of multiple concurrent stayed prison terms. In fact, Ponthieux
concedes that the “district court made all of the appropriate findings, and supported
them.” We note that Ponthieux does not challenge the district court’s decision to revoke
his probation; he only challenges the decision to execute his entire sentence. Austin and
Modtland do not address these circumstances. Those cases merely require district courts
to make “fact-specific records setting forth their reasons for revoking probation.”
Modtland, 695 N.W.2d at 608 (emphasis added). The district court complied with that
requirement. It was not required to make additional findings regarding why it revoked
all, instead of some, of a sentence comprised of multiple concurrent stayed prison terms.
Ponthieux argues, “[t]his case is about the excessive incarceration of a man who is
in need of correctional treatment.” But “[t]he power to define the conduct which
constitutes a criminal offense and to fix the punishment for such conduct is vested in the
legislature.” State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982). Each component of
Ponthieux’s sentence is within the limits prescribed by the legislature. In fact, the law
presumed that each prison term would be executed at the time of sentencing. Instead, the
district court agreed to a downward dispositional departure and gave Ponthieux the
7
opportunity to remain in the community on probation. Unfortunately, Ponthieux failed to
take advantage of that opportunity, and his probation violations triggered execution of his
entire 360-month sentence. But that sentence—significant as it may be—ultimately
stems from Ponthieux’s four convictions of first-degree criminal sexual conduct. We
therefore are not persuaded by Ponthieux’s argument that “[t]he severity of the violations
does not require execution of the entire 360-month sentence.” See Minn. Sent.
Guidelines III.B (2008) (stating that, when considering whether to revoke a stayed
sentence, “[l]ess judicial forbearance is urged for persons . . . who were convicted of a
more severe offense”).
Moreover, although the district court did not explain why it refused to execute
only a portion of Ponthieux’s entire sentence, the record shows that the court considered
the length of the sentence when deciding whether to revoke, noting that the court’s “only
hesitation” was that “360 months is a really long time.” Ultimately, the district court
indicated that its decision to revoke was not “a close call,” despite the length of the
sentence, concluding that Ponthieux is a public-safety risk and that he is not amenable to
probation.
In conclusion, the district court did not erroneously omit findings required under
Austin and Modtland, and it did not otherwise abuse its broad discretion by revoking
Ponthieux’s probation and executing his entire stayed sentence. We therefore affirm.
Affirmed.
8