                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1012

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Patrick William Carey,
                                        Appellant.

                                Filed December 22, 2014
                                Affirmed; motion granted
                                     Chutich, Judge

                              Ramsey County District Court
                               File No. 62-K6-04-002425

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Patrick Carey appeals the district court’s decision to revoke his

probation and execute his prison sentence, arguing that the evidence was insufficient to
show that the need for confinement outweighed the policies favoring probation. Carey

also moves this court to accept his late pro se supplemental brief, in which he argues that

he was denied effective assistance of counsel at the revocation hearing and that a

condition of probation was impermissibly vague. We grant this motion and consider

Carey’s additional arguments.      Because sufficient evidence exists to support the

revocation, and Carey’s pro se arguments lack merit, we affirm.

                                         FACTS

       In 2004, appellant Patrick Carey pleaded guilty to two counts of first-degree

criminal sexual conduct. The convictions stem from multiple sexual acts that Carey

committed against two of his nieces when they were minors. Carey was sentenced to 144

months in prison for the first count, which he served. The district court also imposed but

stayed a consecutive 86-month sentence for the second count. This sentence was stayed

for 30 years and Carey’s probation began immediately. A special condition of probation

stated that Carey was to have no contact with any minors “without the written permission

of [his] probation officer.”

       In March 2014, Carey’s probation officer filed a recommendation with the district

court to revoke the stay of execution because Carey had contact with minors. Later in

March, the district court held a probation revocation hearing.

       The probation officer detailed the violation. Carey told his supervised-release

agent that he had contacts with his friends’ minor children, including their 12-year-old

daughter. The children’s father confirmed that Carey was in contact with the children on




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many occasions. The father told the supervised-release agent that he believed Carey

could have supervised contact with the children.

       The probation officer testified that he had directed Carey, on six separate

occasions, not to have contact with minors. On one of those occasions, the probation

officer specifically told Carey that before he could have contact with minors, (1) Carey

would need to be in treatment; (2) Carey’s sex-offender therapist, the probation officer’s

supervisor, and a child protection official all would need to approve the contact; and

(3) any supervisor of the contact would have to be agent-approved and have completed a

certified chaperone class. The probation officer further testified that although minors

may be present in public places, Carey needed to follow a specific process to have

contact with minors, and that Carey was never told he could have either direct or indirect

contact with minors.

       The probation officer also testified that Carey’s intentional and deceptive actions

were aggravating factors supporting commitment. He said that Carey was in the process

of building a trusting relationship with the family, and, in many cases of sexual assault

against minors, a grooming period occurs. The probation officer noted that the 12-year-

old daughter is in Carey’s “victim pool,” given that his previous convictions stem from

offenses committed against girls similar in age. The probation officer also stated that the

contacts occurred on many occasions but because they were never reported, the extent of

Carey’s relationship with the minors could not be determined. Finally, the probation

officer testified that Carey placed himself in this situation knowing that it violated his

probation and that he believed Carey “present[ed] a high risk to community safety.”


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       Carey claimed that his understanding of the probation officer’s instructions was

that he was not to interact with any children. He said that the children’s parents were

always around and that if the children tried to engage him in conversation, he would walk

away. But Carey also admitted that, although he told his probation officer that children

lived at his friends’ house, he did not mention that he was there. Carey further admitted

that he never sought permission from his probation officer to have contact with the

children.

       The district court revoked the stay of execution, finding that confinement was

necessary to protect the public from further criminal activity; treatment would be most

effectively provided in prison; and it would unduly depreciate the seriousness of the

violation if probation were not revoked. The district court added:

                      I find it disturbing that you are nuancing words about
             interaction versus contact. I had an opportunity to go back
             and review [the sentencing judge’s] original sentence. And
             I’m quoting from her original sentence that she said to you
             directly is, “You are not to have any contact with any minors
             -- that means anybody under the age of 18 -- without written
             permission of your probation officer.”
                      You admitted to me this morning that you did not
             obtain written permission from your probation officer prior to
             having contact with the minor children of your friends.
                      It is very disturbing to me that you are now trying
             to . . . nuance words or something and say interaction isn’t
             contact. Contact is contact.
                      And if you didn’t understand what “contact” meant
             before you saw those children, you should have talked with
             [your probation officer] or someone else in the probation
             office and clarified what exactly does “contact” mean.

The district court executed the 86-month sentence. This appeal followed.




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                                     DECISION

                              I.     Probation Revocation

       Carey first argues that the evidence was insufficient to support a finding that the

need for confinement outweighed the policies favoring probation. In support of his

argument, he notes that he informed his probation officer that he had been around

children and his mistaken belief that he was not violating the terms of his probation. He

also argues that the district court had other meaningful sanctions instead of executing the

sentence. The state counters, and we agree, that sufficient evidence exists to support the

district court’s decision.

       A.     Standard of Review and the Austin Factors

       If an offender violates probation, a district court may continue probation, impose

intermediate sanctions, or revoke probation and execute the stayed sentence. Minn. Stat.

§ 609.14, subd. 3(2) (2012). A district court’s determination that sufficient evidence

exists to revoke probation is reviewed for abuse of discretion. State v. Austin, 295

N.W.2d 246, 249-50 (Minn. 1980).

       In Austin, the supreme court set forth the three findings a district court must make

before revoking probation: (1) the specific condition or conditions of probation that were

violated; (2) the violation was intentional or inexcusable; and (3) the need for

confinement outweighs the policies favoring probation. Id. at 250.

       Regarding the third factor, the Austin court noted that “policy considerations may

require that probation not be revoked even though the facts may allow it.” Id. A court

should balance the probationer’s interest in freedom and the state’s interest in ensuring


                                            5
his rehabilitation and the public safety. Id. Revocation should not be a reflexive reaction

and it requires a showing that “the offender’s behavior demonstrates that he or she cannot

be counted on to avoid antisocial activity.” Id. at 251 (quotation omitted).

          To balance the probationer’s needs with the public’s, the Austin court set forth the

following considerations:

                 Grounds for and alternatives to probation revocation.

                 (a) Violation of a condition is both a necessary and a
                 sufficient ground for the revocation of probation. Revocation
                 followed by imprisonment should not be the disposition,
                 however, 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.

Id. (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft

1970)). A district court need only find one of the listed grounds to support revocation.

See id.

          B.     Carey’s Revocation

          The district court stated on the record that it found confinement necessary to

protect the public, Carey needed correctional treatment which could most effectively be

provided in confinement, and it would unduly depreciate the seriousness of the violation

if probation was not revoked. Sufficient evidence exists to support these findings.



                                               6
       Testimony established that Carey was told many times about the procedure that he

must use before having intentional contact with children. The probation officer also

clarified that although Carey may have encountered minors in public places, he was never

told that he could have either direct or indirect contact with them. The district court

noted the clarity of the original sentence: Carey was not to have contact with any minor

without written permission of his probation officer. The district court further stated its

concern with Carey’s attempt to create a nuanced difference between “interaction” and

“contact.”

       Furthermore, Carey admitted that although he informed his supervised-release

agent that children were at his friends’ house, he did not tell the agent that he visited the

home. And as the probation officer noted, one of the children was a girl similar in age to

Carey’s victims. This evidence supports the district court’s finding that the need for

confinement outweighed the policies against probation, and therefore it properly

exercised its discretion in revoking Carey’s probation.

                            II.    Carey’s Pro Se Arguments

       Carey also moves to submit a pro se supplemental brief that raises additional

issues. We grant this motion and address Carey’s claims in turn.

       Carey first claims that he received ineffective assistance of counsel at his

probation revocation hearing. To prevail on a claim of ineffective assistance of counsel,

an appellant must “demonstrate that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) a reasonable probability exists that, but for his

counsel’s unprofessional error, the outcome would have been different.” Leake v. State,


                                             7
767 N.W.2d 5, 10 (Minn. 2009) (citing Strickland v. Washington, 466 U.S. 687-88, 104

S. Ct. 2052, 2064-65 (1984)). Both prongs need not be analyzed if one is determinative.

Id.

       Carey’s claim fails because he cannot show how the outcome of the hearing would

have been any different but for his counsel’s performance. Carey’s argument focuses on

his claim that he did not interact with the children at his friends’ house. But this exact

claim was rejected by the district court, which stated how disturbed it was with Carey’s

attempt to “nuance” a difference between “interaction” and “contact.” Because Carey

cannot establish that but for his counsel’s performance, the outcome would be different,

this claim fails.

       Finally, Carey argues for the first time on appeal that the probation condition

forbidding contact with minors is vague and violates his rights to due process. Issues not

raised in the district court but raised for the first time on appeal are considered waived.

State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990). Even if we were to consider the

merits of this contention, however, this argument fails. See State v. Schwartz, 628

N.W.2d 134, 141-42 & n.4 (Minn. 2001) (rejecting argument that a no-contact with

minors probation condition is unreasonably restrictive and vague when a defendant has

that condition explained). Because Carey’s pro se arguments are unavailing, we affirm.

       Affirmed; motion granted.




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