State of Minnesota v. Ryan Allen Bartyzal ( 2015 )

This opinion will be unpublished and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
A14-2216
State of Minnesota,
Respondent,
vs.
Ryan Allen Bartyzal,
Appellant.
Filed November 30, 2015
Affirmed
Schellhas, Judge
Scott County District Court
File Nos. 70-CR-07-12369, 70-CR-14-3484
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Carson J. Heefner, Heefner Nelson Law, P.A., St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Schellhas, Judge; and Klaphake,
Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant argues that the evidence was insufficient to support the district court’s
revocation of his probation. We affirm.
FACTS
The facts are undisputed. In May 2008, appellant Ryan Bartyzal pleaded guilty to
third-degree criminal sexual conduct and fourth-degree criminal sexual conduct. Bartyzal
committed third-degree criminal sexual conduct against S.E.K. when he was 19 years old
and she was 15 years old. He committed fourth-degree criminal sexual conduct against
E.M.K. when he was 20 years old and she was 15 years old. In sentencing Bartyzal, the
district court departed downward dispositionally by staying imposition of sentence on the
third-degree conviction and placing Bartyzal on probation for five years. On the fourth-
degree conviction, the court imposed a sentence of 66 months’ imprisonment, which it
stayed for five years with concurrent probation.
On March 11, 2010, Scott County Community Corrections (SCCC) filed a
probation violation report against Bartyzal, alleging that he failed to refrain from the use
of alcohol or non-prescribed drugs based on Bartyzal’s admission that he had consumed
alcohol on three different occasions. At his probation violation hearing, Bartyzal admitted
to the alleged violation, and the district court reinstated Bartyzal’s probation with three
days in jail as an intermediate sanction.
On March 21, 2013, SCCC filed a second probation violation report against
Bartyzal. The report alleged that Bartyzal had failed to remain law-abiding because he
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was charged with felony domestic assault in July 2012, failed to successfully complete
outpatient sex-offender treatment because he was terminated from the treatment program
at CORE Professional Services P.A. in March 2013, and possessed sexually explicit
materials. At his probation violation hearing, Bartyzal admitted to failing to complete
sex-offender treatment and possessing sexually explicit materials. The district court
reinstated and extended Bartyzal’s probation for three years or until completion of sex-
offender treatment and imposed an intermediate sanction of 180 days in jail.
On August 21, 2014, SCCC filed a third probation violation report against
Bartyzal, alleging that he had failed to successfully complete sex-offender treatment
because he again was terminated from the program at CORE in August 2014, failed to
submit to urinalysis testing, and failed to submit to polygraph examination. Bartyzal
admitted to these violations at his probation violation hearing. At a disposition hearing on
September 29, the district court accepted Bartyzal’s admissions, found that his probation
violations were intentional and inexcusable, and stated:
[W]e said [at the 2013 probation violation hearing] you’ve
got to stop screwing around. Here we are.
You know, there’s some language in the statute about
diminishing the seriousness of—you know, that we continue
people on probation after violation and violation and
violation, and after a while it just looks like we don’t have
any reason to have violations because it doesn’t matter
because we just keep continuing down the same road. At
some point, I start to look foolish and Probation starts to look
foolish because they keep asking you to do the same things,
and you don’t do them; and whether or not it’s nervousness or
you being aloof, the impression they are getting is you are
laughing and you are yawning and you are not doing what
you need to do in these programs.
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In the end, we have to say, well, we can’t seem to get
Mr. Bartyzal’s attention that this is serious, and I guess that’s
our real concern is that this has gone on and on and on. Your
lawyer is right, it’s been a long time, but it’s been a long time.
You should be through this stuff by now.
The court revoked Bartyzal’s probation, revoked the stays of imposition and execution,
and executed concurrent sentences of 28 months’ imprisonment and five years’
conditional release for the third-degree criminal sexual conduct conviction and 66
months’ imprisonment and lifetime conditional release for the fourth-degree criminal
sexual conduct conviction.
This appeal follows.
DECISION
Before revoking probation, a 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). Bartyzal challenges the
sufficiency of the evidence with respect to the third Austin factor.1
The 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 249–50. “When determining if revocation is appropriate, courts must
balance ‘the probationer’s interest in freedom and the state’s interest in insuring his
rehabilitation and the public safety,’ and base their decisions ‘on sound judgment and not
1
Because Bartyzal “concedes that failure to make express [Austin] findings is not an
abuse of discretion where the record contains sufficient evidence supporting revocation,”
we do not address whether the district court made a proper third Austin finding.
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just their will.’” State v. Modtland, 695 N.W.2d 602, 606–07 (Minn. 2005) (quoting
Austin, 295 N.W.2d at 250–51). To satisfy the third Austin factor, courts should consider
whether (1) “confinement is necessary to protect the public from further criminal activity
by the offender,” (2) “the offender is in need of correctional treatment which can most
effectively be provided if he is confined,” or (3) “it would unduly depreciate the
seriousness of the violation if probation were not revoked.” Austin, 295 N.W.2d at 251
(quotation omitted); accord Modtland, 695 N.W.2d at 607.
Bartyzal focuses on whether his confinement is necessary to protect the public
from further criminal activity, arguing that “except [for] an innocuous mistake,” he was a
“model probationer,” despite the fact that he still had not completed sex-offender
treatment “roughly five years after being placed on probation.” He contends that, while it
was “taking him a little longer than usual to complete” the treatment program, he was
“unjustly terminated” from the program for not completing one polygraph examination
and being unprepared for two group sessions. He asserts that he was only terminated
from the program after a new individual was placed in charge, who was “simply
unfamiliar with [Bartyzal]’s progress over the course of 6 years, and witnessed a few
rules violations in a short period of time,” and that “[he] was terminated from a program
in which he was making progress.”
In addressing the third Austin factor, the district court stressed Bartyzal’s repeated
failure to do the things that he had been ordered to do throughout his probationary period
and expressed a belief that “it would unduly depreciate the seriousness of the violation if
probation were not revoked.” See Austin, 295 N.W.2d at 251 (quotation omitted); see
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also State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (stating that
consideration of downward dispositional departure when deciding whether to revoke
probation is proper); Minn. Sent. Guidelines 3.B (2014) (stating that, when considering
whether to revoke a stayed sentence, “[l]ess judicial tolerance is urged for offenders who
were convicted of a more severe offense”).
Based on our careful review of the record, we conclude that the evidence amply
supports the district court’s findings and that the court did not abuse its discretion by
revoking Bartyzal’s probation.
Affirmed.
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