This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0813
State of Minnesota,
Respondent,
vs.
Aamir Karmoeddien,
Appellant.
Filed January 17, 2017
Affirmed
Smith, Tracy M., Judge
Hennepin County District Court
File No. 27-CR-15-3787
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant Aamir Karmoeddien challenges the revocation of his probation, arguing
that (1) the district court violated his right to have a neutral and detached decision-maker
preside over his probation-revocation proceedings and (2) the district court abused its
discretion in revoking his probation. We affirm.
FACTS
On September 30, 2015, Karmoeddien pleaded guilty, pursuant to a plea agreement,
to driving while intoxicated (DWI). A presentence investigation reported three prior
DWIs: (1) Karmoeddien’s first DWI involved speeding at 120 mph and an alcohol
concentration of 0.22; (2) Karmoeddien’s second DWI involved driving on a highway
without headlights and an alcohol concentration of 0.16; and (3) Karmoeddien’s third DWI
involved a refusal to test. The presentence investigation also reported a prior disorderly
conduct offense where Karmoeddien had an alcohol concentration of 0.21 and numerous
probation violations corresponding with these prior offenses.
On December 1, 2015, the district court sentenced Karmoeddien, in accordance with
the plea agreement, to a stayed 42-month prison sentence and placed him on probation for
five years. Karmoeddien’s relevant probation conditions included abstaining from alcohol,
complying with chemical testing, completing chemical health treatment and aftercare, and
remaining law abiding. After the district court expressed concern regarding a correlation
between Karmoeddien’s alcohol use and criminal history, the district court further stated:
So you are going to be on probation to me, and if you return
with a probation violation, from my point of view, the record
so far is enough that you will go to prison. So I’m going to tell
you that right up front, not as a threat, but simply so we know
where we stand, because if you come back here, I’m not going
to accept any excuses. You’ve already violated conditional
release, you’ve already violated probation. You either take this
seriously or you don’t. And if you don’t, you know what the
consequences are.
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On February 2, 2016, Karmoeddien’s probation officer filed a probation-violation
report and arrested Karmoeddien for probation violations. The probation-violation report
alleged that Karmoeddien (1) failed to remain law abiding based on two counts of
misdemeanor domestic assault in December 2015, (2) failed to complete treatment, and
(3) failed to abstain from alcohol. With respect to the second and third alleged violations,
the report stated that between December 1, 2015 and February 21, 2016, Karmoedden
tested positive for alcohol three times; admitted to using alcohol on another, separate
occasion; missed nine treatment appointments; and was dismissed from his treatment
program prior to completion.
The same district court judge presided at the probation-revocation hearing. At the
hearing, the probation officer testified to the information presented in the probation-
violation report. The probation officer also testified that she had filed the probation-
violation report and requested an arrest-and-detain order, rather than schedule a meeting
with Karmoeddien, because “[t]here had been some e-mails back and forth between [the
district court] and some attorneys, and [the district court] requested that I issue the warrant
and I did.” In addition, Karmoeddien testified that he missed a number of treatment
sessions due to medical appointments and because his prescribed medications had caused
him to oversleep.
The district court found that Karmoeddien had intentionally and inexcusably
violated the conditions of his probation by failing to complete treatment, failing to abstain
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from alcohol, and failing to remain law abiding. The district court also found that public
safety needs outweighed public policy of favoring probation because Karmoeddien
continues to drink and drive, and the facts of the various cases
involve accidents, speeding at a hundred miles an hour,
wandering around streets in a drunken state, all of which are
extremely hazardous to him and to other members of the
public. So I think massive efforts have been made to make
probation available to him and to assist with his issues through
probation and he has simply refused to take advantage of those,
so the only remaining alternative to protect public safety is to
revoke [probation and impose] the prison sentence.
The district court further noted, “I brought this up at sentencing when I warned
[Karmoeddien] about the need to comply with probation.” The district court revoked
Karmoeddien’s probation and executed his 42-month prison sentence.
Karmoeddien appeals.
DECISION
I. The district court did not violate Karmoeddien’s right to have a neutral and
detached decision-maker preside over his probation-revocation proceedings.
For the first time on appeal, Karmoeddien argues that the district court violated his
right to have a neutral and detached decision-maker preside over his probation-revocation
proceedings. When the question of judicial disqualification is first raised on appeal, we
apply a plain-error standard of review:
Under our plain error analysis, we apply a four-pronged test in
which we first consider whether: (1) there was an error;
(2) which was plain; and (3) which affected the defendant’s
substantial rights. If each of these prongs [is] satisfied, we then
consider whether to address the error to ensure the fairness and
integrity of the judicial proceedings. An error is plain if it
contravenes case law, a rule, or a standard of conduct. An error
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affects substantial rights if it is prejudicial and affects the
outcome of the case.
State v. Schlienz, 774 N.W.2d 361, 366 (Minn. 2009) (citations and quotations omitted).
Karmoeddien contends that the district court’s statements during the sentencing and
revocation hearings suggest that the district court prejudged his probation revocation.
Individuals on probation are entitled to constitutional safeguards before their probation can
be revoked. Pearson v. State, 308 Minn. 287, 289, 241 N.W.2d 490, 492 (1976). One of
these safeguards is that the revocation hearing must be held before a neutral and detached
hearing body. Id. at 492. The Minnesota Rules of Criminal Procedure provide, “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). Under the Minnesota Code of Judicial
Conduct, “[a] judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned.” Minn. Code Jud. Conduct Rule
2.11(A). The code defines “impartiality” as “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.” Terminology, Minn. Code Jud.
Conduct.
First, Karmoeddien argues that the district court prejudged his probation-revocation
hearing, relying on State v. Finch, 865 N.W.2d 696 (Minn. 2015). In Finch, the supreme
court reversed the revocation of probation because “the district court judge unequivocally
told [the defendant] that the court would revoke his probation for any violation, and
because the judge speculated that [the defendant] had ‘duped’ the court when he exercised
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his right to appeal.” Id. at 705. The district court judge had also stated the following, in
denying the defendant’s disqualification motion:
[T]he Court made it very clear to [the defendant] that the Court
was going out on a limb with regards to departing, and that the
Court expected that he was going to take advantage of this
opportunity and make some changes in his life. The Court
made it very clear at the time that [the defendant], if he had any
probation violations of any of the conditions of his probation,
the Court would be executing his prison time.
Id. at 704 (alteration in original). In addition, at a scheduling hearing, the district court
judge in Finch referenced these previous comments in connection with the judge’s
probation-revocation analysis: “It has nothing to do with the third [Austin] factor; it has
more to do with what I told you, at the time I decided to make that [downward dispositional]
departure.” Id.
Here, our analysis focuses on the impact of two of the district court’s statements:
(1) at the sentencing hearing, the district court stated, “[I]f you come back here, I’m not
going to accept any excuses”; and (2) at the probation-revocation hearing, the district court
stated, “I brought this up at sentencing when I warned [Karmoeddien] about the need to
comply with probation.” When considered within the context of the full record, we read
the district court’s first comment as part of an overarching warning to Karmoeddien “that
a violation of probation can have serious ramifications.” Finch, 865 N.W.2d at 705 n.6.
Such a warning is permissible. Id. The second comment, stated at the revocation hearing,
was part of a broader statement regarding the district court’s concern that Karmoeddien is
“22 years old, he’s only been legal to drink alcohol for one year, and he has four DWIs.”
Both of these comments represent the district court’s candid assessment of the gravity of
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Karmoeddien’s situation and his history of criminal offenses involving alcohol. Such
comments do not suggest or imply an inability to impartially conduct the revocation
analysis.
Second, Karmoeddien asserts that by directing the probation officer to arrest
Karmoeddien for alleged probation violations, the judge inserted herself into the probation
matter and thus was disqualified. Karmoeddien draws comparisons to State v. Cleary,
where we reversed revocation of probation because the district court judge was part of the
team that had overseen the defendant in drug court and had made the decision to terminate
his participation in drug court, which was the sole probation violation. 882 N.W.2d 899,
903, 908 (Minn. App. 2016). The district court’s involvement here, however, was
distinguishable from the district court’s involvement in Cleary. Unlike in Cleary, the
district court was not involved in Karmoeddien’s probation violations; instead,
Karmoeddien’s violations were solely the result of his own decisions and conduct. The
district court was not “directly involved in the case” and was not disqualified from
presiding over the probation-revocation proceeding. Id. at 906.
In sum, the district court’s comments and conduct did not constitute plain error, and
the district court did not violate Karmoeddien’s right to have a neutral and detached
decision-maker preside over his probation-revocation proceedings. The record does not
indicate any failure by the district court to approach probation revocation with an open
mind, and there is no basis for Karmoeddien’s assertion that a reasonable examiner would
question the district court’s impartiality.
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II. The district court did not abuse its discretion in revoking Karmoeddien’s
probation.
Karmoeddien also argues that the district court abused its discretion in revoking
Karmoeddien’s probation because the state failed to establish that the policies favoring
probation were outweighed by a need for confinement. We review the decision to revoke
probation for an abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn.
1980). The district court’s factual findings are subject to a clearly erroneous standard of
review. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov.
20, 1996).
When a defendant violates a condition of probation, the district court may revoke
probation and execute the previously stayed sentence. Minn. Stat. § 609.14, subd. 3 (2014).
The state has the burden of proving an alleged probation violation by clear and convincing
evidence. Minn. R. Crim. P. 27.04, subd. 3. Clear and convincing evidence is
demonstrated when the truth of the facts sought to be admitted is “highly probable.” Roby
v. State, 808 N.W.2d 20, 26 (Minn. 2011) (quotation omitted). Before revoking a
defendant’s probation and executing the stayed sentence, 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. Under the third Austin factor,
the district court must balance a defendant’s interest in remaining at liberty against the
state’s interest in rehabilitation and public safety, considering whether:
(i) confinement is necessary to protect the public from
further criminal activity by the offender;
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(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 250-51.
Here, the district court concluded that the first and second Austin factors were met
by finding that Karmoeddien inexcusably violated his probation by failing to participate in
treatment and testing positive for alcohol numerous times, including the day after he was
sentenced. Karmoeddien’s argument focuses on the third Austin factor. Specifically,
Karmoeddien contends that the district court impermissibly relied on his criminal and
probation history in determining that the need for confinement outweighed public policies
favoring probation. Caselaw, however, does not preclude consideration of a probationer’s
pattern of behavior. See State v. Osborne, 732 N.W.2d 249, 256 (Minn. 2007) (affirming
probation revocation where the district court’s Austin analysis involved “a full review of
[the defendant’s] lengthy history of criminal activity and chronic probation and treatment
failures”); see also State v. Rottelo, 798 N.W.2d 92, 95 (Minn. App. 2011) (affirming
probation revocation and noting prior offenses and history of probation noncompliance),
review denied (Minn. Jul. 19, 2011).
The district court found that policies favoring probation were outweighed by a need
for confinement due to Karmoeddien’s inability to comply with treatment and to stop
drinking, his “constant violations of probation every time he’s been on [probation],” and
his criminal history involving “accidents, speeding at a hundred miles an hour, wandering
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around streets in a drunken state, all of which are extremely hazardous to [Karmoeddien]
and to other members of the public.” Further, the district court found that “the only
remaining alternative to protect public safety is to” revoke Karmoeddien’s probation and
impose the stayed 42-month prison sentence. These findings were not clearly erroneous.
In sum, the district court did not clearly err in finding that the three Austin factors
were proved by clear and convincing evidence, nor did its decision to revoke
Karmoeddien’s probation constitute an abuse of discretion.
Affirmed.
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