Opinion
No. C3-01-735.
Filed September 25, 2001.
Appeal from the District Court, St. Louis County, File No. K600600020.
Mike Hatch, Attorney General, and
Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This appeal is from an order revoking appellant Rebecca Marotta's probation and executing her sentence for fourth-degree controlled substance offense. Marotta challenges the revocation, ordered less than a month after sentencing, as well as the sentencing departure in the form of consecutive service, to which she agreed as part of the plea agreement. We affirm.
FACTS
Marotta was charged with fourth-degree controlled substance offense for selling methamphetamine to a confidential informant in a controlled buy. The controlled buy occurred in appellant's Duluth residence. The informant obtained a substance that tested out as .6 grams of methamphetamine. At the time of the offense, Marotta was on probation for a 1998 fifth-degree controlled substance offense.
Marotta entered a plea agreement under which she would plead guilty to the charge, as well as to the violation of her probation on the other file, and receive a "guidelines sentence" that would be consecutive to the sentence for the 1998 offense. The sentence would be stayed, with Marotta to enter and complete long-term inpatient treatment as a condition of probation.
At the guilty plea hearing and sentencing, the plea agreement was reiterated and it was agreed that the presumptive sentence for the offense was 24 months, which was to be made consecutive to the 13-month sentence for the 1998 offense. The court accepted Marotta's guilty plea and sentenced her as provided in the agreement.
The court ordered that Marotta be placed on probation for five years, with a condition being that she enroll in and complete Liberalis, or another long-term inpatient treatment program. The court also ordered that Marotta would be subject to random urinalysis at the discretion of her probation officer. The court warned Marotta that the stay was her last chance and that a violation of probation would lead to execution of the sentence.
Marotta tested positive for drug use in a urinalysis ordered not long after sentencing. At a revocation hearing, Marotta admitted the violation. The district court rejected her argument that probation should not be revoked because Marotta resumed using drugs before she could enter the treatment program.
DECISION I.
Marotta argues that the district court abused discretion in revoking probation for her admitted use of methamphetamine shortly after sentencing and before Marotta could enter treatment.
The trial court has broad discretion in determining whether there is sufficient evidence to warrant revocation of probation, and the decision will not be reversed absent a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).
It is well established that use of alcohol or illegal drugs, particularly on the part of an offender whose crime involved drug or alcohol use, is grounds for revocation of probation. See State v. Ehmke, 400 N.W.2d 839, 840 (Minn.App. 1987) (affirming revocation of probation based on DWI conviction after defendant received probation for assault occurring when he was very intoxicated); State v. Kaska, 371 N.W.2d 89, 90 (Minn.App. 1985) (affirming revocation of probation based on open bottle and marijuana possession convictions where felony theft defendant had been warned at sentencing about use of drugs).
Marotta had been convicted of sale of a controlled substance in 1989. She was also on probation for the 1998 possession of methamphetamines. She was warned at sentencing that the court was giving her "one last chance." The district court did not clearly abuse discretion in following up on this warning and revoking probation.
II.
Marotta argues that the district court abused discretion in imposing a consecutive sentence, an upward departure, without any basis other than the plea agreement. She argues that although State v. Givens, 544 N.W.2d 774 (Minn. 1996), permits departures based solely on plea agreements, Givens has been legislatively overruled by the 1997 amendment to Minn. Stat. § 244.09, subd. 5. The state argues that Marotta cannot raise the sentencing issue in this probation revocation appeal. The state cites a 1997 amendment to Minn. Stat. § 244.11, subd. 3(b), enacted as part of the same law. See 1997 Minn. Laws ch. 96.
We need not address the parties' statutory arguments. As the state points out, Marotta did not challenge the sentencing departure in the probation revocation hearing. The general rule is that this court will not consider an issue raised for the first time on appeal. See State v. Thomas, 467 N.W.2d 324 (Minn.App. 1991). In the cases allowing a defendant to challenge a sentence in the probation revocation appeal, the defendant had first raised the issue in the probation revocation hearing. See State v. Hockensmith, 417 N.W.2d 630, 631 (Minn. 1988); State v. Fields, 416 N.W.2d 734, 735 (Minn. 1987). We hold that a defendant who, like Marotta, has agreed to departure, thereby precluding development of an adequate record at sentencing, must raise the sentencing issue in the probation revocation hearing to obtain appellate sentencing review in the probation revocation appeal. Because Marotta did not challenge the sentence in the district court, she has waived the issue. Affirmed.
Our holding that Marotta did not preserve the sentencing issue for this appeal does not preclude her from raising it in a postconviction proceeding.