State of Minnesota v. Max Dylan Loosen-Scholer ( 2016 )

This opinion will be unpublished and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
A15-1095
State of Minnesota,
Respondent,
vs.
Max Dylan Loosen-Scholer,
Appellant.
Filed March 7, 2016
Affirmed
Ross, Judge
Carlton County District Court
File No. 09-CR-12-2797
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Thomas H. Pertler, Carlton County Attorney, Carlton, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
Then 19-year-old Max Dylan Loosen-Scholer sexually assaulted a 13-year-old girl
multiple times over a five-day period in 2012. He pleaded guilty to third-degree criminal
sexual conduct and the district court imposed a 48-month prison sentence but stayed its
execution on various probationary terms. During the period before and after his sentence,
Loosen-Scholer repeatedly used drugs, was several times discharged from substance-abuse
programs, and was arrested for impaired driving. The district court revoked Loosen-
Scholer’s probation, and he now appeals, arguing that his need for confinement does not
outweigh the policies favoring his continued probation. Because the district court acted
within its discretion in revoking Loosen-Scholer’s probation, we affirm.
FACTS
Loosen-Scholer pleaded guilty to third-degree criminal sexual conduct after he
repeatedly subjected a 13-year-old girl to sex in November 2012. The district court released
Loosen-Scholer before sentencing him, but a month later he was back in custody after he
overdosed on drugs. He and the state amended the plea agreement, allowing him to be
furloughed to complete a substance-abuse program. But the treatment program
administrator discharged him from it after two months because he failed to progress.
In November 2013, the district court sentenced Loosen-Scholer to 48 months in
prison with a ten-year conditional-release period, but it stayed execution of the sentence
for three years on various probationary conditions including, among other things,
completion of a drug treatment program and a sex-offender treatment program. Loosen-
Scholer twice violated the terms of his probation by failing drug tests. And police arrested
him for impaired driving. Finally, in March 2015 he was discharged from another drug
treatment program.
The state asked the district court to revoke Loosen-Scholer’s probation. The district
court held a probation-revocation hearing where Loosen-Scholer admitted that he had used
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Suboxone—a prescription drug—without authorization while he was in the program. The
district court found that Loosen-Scholer’s discharge from treatment and his Suboxone use
were intentional and inexcusable violations of his probation. It also determined that the
need for his confinement outweighs the policies favoring continued probation because his
confinement is needed to protect the public and because treatment would be most effective
in confinement. The district court therefore revoked Loosen-Scholer’s probation and
executed his stayed sentence.
Loosen-Scholer appeals that decision.
DECISION
Loosen-Scholer argues that the district court erred by revoking his probation. We
recognize a district court’s broad discretion to determine whether sufficient evidence
supports the state’s effort to revoke probation, and we will not reverse the determination
unless we identify a clear abuse of that discretion. State v. Osborne, 732 N.W.2d 249, 253
(Minn. 2007). When a district court revokes probation, it must identify the specific
probationary condition violated, find that the probationer’s violation was either intentional
or inexcusable, and find that the need to confine the probationer outweighs the policies that
favor probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). Loosen-Scholer
challenges only the district court’s finding that the need to confine him outweighs the
policies that favor probation.
When the district court weighs whether the need to confine a probationer outweighs
the policies that favor his probation, it should consider the original offense and the
offender’s intervening conduct in relation to three factors: (1) whether confinement is
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necessary to protect the public from the probationer, (2) whether the probationer needs
correctional treatment best provided in confinement, and (3) whether failing to revoke
probation would unduly depreciate the violation’s seriousness. State v. Modtland, 695
N.W.2d 602, 606–07 (Minn. 2005).
Loosen-Scholer questions the district court’s conclusion based on all three of these
subfactors. We do not share his disagreement with the district court’s bases.
Loosen-Scholer first argues that his confinement is not necessary to protect the
public from his further criminal activity. The argument is unconvincing. The district court
determined that his confinement is necessary to protect the public because of his impaired-
driving arrest and his inability to complete sex-offender treatment until he ends his
chemical dependency. It found the untreated relationship between his dependency and his
sex offense particularly troubling given that he committed his sex offense while he and the
victim were under the influence of the drugs and alcohol that he had provided. The record
supports these findings, but Loosen-Scholer counters, claiming that his substantial
chemical-dependency issues pose only a risk to him and not to the public. The argument is
flawed on a matter of fact. Loosen-Scholer’s untreated chemical abuse was an element in
both his impaired driving and his sexual assault on the child, and the dangers associated
with future similar crimes are self evident.
Loosen-Scholer argues next that he need not be confined to receive corrective
treatment. The record supports the district court’s disagreement with this proposition. It
cited Loosen-Scholer’s discharges from multiple chemical-dependency programs over a
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relatively short period. And it attributed much of Loosen-Scholer’s difficulty in completing
chemical-dependency treatment to his own actions:
There are not community resources for you. You’ve repeatedly
failed as we have made Herculean efforts. You haven’t
cooperated. You’ve engaged in drug-seeking behaviors.
You’ve been very difficult to supervise. When you were taken
to the jail, you were threatening to the jail staff and their
families.
The court reasonably determined that revocation is necessary “because nothing that we’ve
done has had any success.”
Loosen-Scholer argues finally that confinement exaggerates the severity of his
probation violations. He describes his violations as more “technical than egregious” and
maintains that continuing the probation would not unduly depreciate their severity. The
district court did not expressly address the final Modtland subfactor, but we are satisfied
that Loosen-Scholer’s argument about it is not compelling. In any event, the district court’s
revocation decision finds ample support in both the other subfactors, and we need not
consider the argument further.
Affirmed.
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