                          7This opinion will be unpublished and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
                                     A14-2208

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                James Brandon Ponthieux,
                                       Appellant.

                                   Filed July 13, 2015
                                        Affirmed
                                     Larkin, Judge

                               Itasca County District Court
                                 File No. 31-CR-11-1530


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

John J. Muhar, Itasca County Attorney, Matti R. Adam, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eric I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)



         Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       In this probation-revocation appeal, appellant argues that the district court erred by

failing to explain why it refused to execute only one of appellant’s concurrent stayed

prison terms for four counts of first-degree criminal sexual conduct, as appellant

proposed, instead of his entire 360-month sentence. Because the district court satisfied

the applicable caselaw requirements when revoking appellant’s probation and did not

otherwise abuse its broad discretion, we affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant James Brandon Ponthieux with

eight counts of first-degree criminal sexual conduct in one criminal complaint, alleging

that he had sex with his roommate’s 14-year-old daughter on four occasions. Ponthieux

reached a plea agreement with the state, under which he pleaded guilty to four counts of

first-degree criminal sexual conduct in exchange for the state’s agreement to support a

stayed prison sentence, even though the sentencing guidelines called for an executed

sentence. In January 2012, the district court sentenced Ponthieux to four concurrent

prison terms of 144, 180, 360, and 360 months. Pursuant to the plea agreement, the

district court granted a downward dispositional departure, stayed execution of each term

of imprisonment for ten years, and placed Ponthieux on probation. The district court

ordered one set of probationary conditions for all of the stayed prison terms. Those

conditions required Ponthieux to complete sex-offender treatment, have no unsupervised

contact with minor females, and not possess any type of pornographic material.

                                             2
         In August 2013, Ponthieux violated the conditions of probation by failing to

complete or comply with the requirements of sex-offender treatment and by having

unsupervised contact with a minor female. The district court imposed a sanction of 365

days in jail and continued Ponthieux on probation.

         In April 2014, Ponthieux’s probation officer filed a probation-violation report,

alleging that Ponthieux once again violated the conditions of probation by failing to

complete sex-offender treatment and by having unsupervised contact with a minor. In

May, the probation officer filed an addendum to the report, alleging that Ponthieux

possessed pornographic or sexually explicit material.

         Ponthieux admitted that he violated probation by having unsupervised contact with

a minor.     After an evidentiary hearing, the district court found that Ponthieux also

violated probation by failing to complete sex-offender treatment and by possessing

pornography. The district court found that all three violations were intentional and

inexcusable.

         The state argued for revocation of probation and execution of Ponthieux’s entire

360-month sentence. Ponthieux asked the district court to execute only one of his stayed

prison terms. Specifically, Ponthieux argued that if he served a 144-month term of

imprisonment, he could complete sex-offender treatment in custody, serve a “significant

sentence,” and upon release would “still have a significant sentence hanging over his

head.”

         The district court noted that it had been hesitant to grant a downward dispositional

departure because the presentence investigator opposed probation and because Ponthieux

                                              3
displayed “limited, at best, acceptance of responsibility.” The district court also noted

that Ponthieux had been resistant, argumentative, and manipulative throughout the case.

The district court highlighted the seriousness of Ponthieux’s treatment failure and stated

that his contact with minors was “even more serious.” The district court noted that

Ponthieux “hasn’t even tried to comply with” the no-contact-with-minors condition. The

district court acknowledged that its “only hesitation” was that “360 months is a really

long time,” but it nonetheless indicated that the decision to revoke was not “a close call.”

The district court explained its decision as follows:

              I do feel that, based on all the history of this case, that the
              need for confinement outweighs the presumption in favor of
              continued probation, that [Ponthieux] needs correctional
              treatment because the treatment without the correctional
              aspect of it is clearly not working, and would unduly
              depreciate the seriousness of the offenses, particularly the
              failure of treatment and even more so, as I said earlier, the
              contact with minors, just flaunting that condition of probation
              and maybe about the most important condition of probation,
              that he is a public safety risk and that he is not amenable to
              probation.

                     The bottom line is, I cannot risk another [minor
              victim], [I] just can’t do it.

       The district court revoked Ponthieux’s probation and executed his entire sentence.

Ponthieux appeals.

                                      DECISION

       Ponthieux argues that “[t]he error below was the absence of findings on the record

explaining why the district court rejected [his] proposed disposition of revoking a single

144-month sentence as opposed to the revocation of all four sentences totaling 360


                                              4
months.” Ponthieux further argues that “remand is required under Modtland because of

the absence of explicit findings on why the court’s goals could not be served by [his]

proposed disposition.”

       In Modtland, the supreme court reaffirmed its holding in State v. Austin, 295

N.W.2d 246, 250 (Minn. 1980), “that district courts must make the following three

findings on the record before probation is revoked.” State v. Modtland, 695 N.W.2d 602,

606 (Minn. 2005).

              First, courts must designate the specific condition or
              conditions of probation the defendant has violated. Second,
              courts must find the violation was inexcusable or intentional.
              Once a court has made findings that a violation has occurred
              and has found that the violation was either intentional or
              inexcusable, the court must proceed to the third Austin factor
              and determine whether the need for confinement outweighs
              the policies favoring probation.

Id. (citations omitted).

       The supreme court stated that district courts “should refer” to the following

American Bar Association Standards for Criminal Justice:

              Revocation followed by imprisonment should not be the
              disposition . . . 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.




                                            5
Id. at 607 (quoting Austin, 295 N.W.2d at 251). The supreme court explained that the

“requirement that courts make findings under the Austin factors assures that district court

judges will create thorough, fact-specific records setting forth their reasons for revoking

probation.” Id. at 608.

       “A 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 605 (quotation omitted). But whether the district court made required

findings is a question of law, which is reviewed de novo. Id.

       As support for reversal, Ponthieux relies on State v. Johnson, in which this court

reversed the district court’s decision to revoke probation because the decision was

heavily based on the district court’s misinterpretation of law. 743 N.W.2d 622, 626

(Minn. App. 2008). In Johnson, the district court reasoned that “[b]ecause Minnesota

Statutes specifically limit the amount of time a district court may order a [d]efendant to

serve in jail as a condition of probation to one year,” it had “no choice but to revoke . . .

probation.” Id. at 624-25. On appeal, this court concluded that the applicable statute

“neither states nor implies that there is a limit to the cumulative amount of local jail time

a district court may impose as a consequence of probation violations” and that because

“the district court relied so heavily on its erroneous interpretation of [the statute] when

making its decision,” remand was necessary “for resentencing in light of the correct

interpretation” of the statute. Id. at 626.

       Ponthieux argues, “[a]s in Johnson, the district court below could have declined to

execute only a single sentence under the erroneous presumption that it could not do so.”

                                              6
But the record here does not suggest that the district court believed it could not revoke

only one of Ponthieux’s stayed prison terms. Johnson is therefore distinguishable.

      Ponthieux does not cite any other authority to support his argument that the district

court failed to comply with Austin and Modtland or otherwise made inadequate findings

to support revocation of his entire sentence. We are not aware of any authority requiring

a district court to make Austin findings regarding each count-based component of a

sentence that is comprised of multiple concurrent stayed prison terms. In fact, Ponthieux

concedes that the “district court made all of the appropriate findings, and supported

them.” We note that Ponthieux does not challenge the district court’s decision to revoke

his probation; he only challenges the decision to execute his entire sentence. Austin and

Modtland do not address these circumstances. Those cases merely require district courts

to make “fact-specific records setting forth their reasons for revoking probation.”

Modtland, 695 N.W.2d at 608 (emphasis added). The district court complied with that

requirement. It was not required to make additional findings regarding why it revoked

all, instead of some, of a sentence comprised of multiple concurrent stayed prison terms.

      Ponthieux argues, “[t]his case is about the excessive incarceration of a man who is

in need of correctional treatment.”     But “[t]he power to define the conduct which

constitutes a criminal offense and to fix the punishment for such conduct is vested in the

legislature.” State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982). Each component of

Ponthieux’s sentence is within the limits prescribed by the legislature. In fact, the law

presumed that each prison term would be executed at the time of sentencing. Instead, the

district court agreed to a downward dispositional departure and gave Ponthieux the

                                            7
opportunity to remain in the community on probation. Unfortunately, Ponthieux failed to

take advantage of that opportunity, and his probation violations triggered execution of his

entire 360-month sentence. But that sentence—significant as it may be—ultimately

stems from Ponthieux’s four convictions of first-degree criminal sexual conduct. We

therefore are not persuaded by Ponthieux’s argument that “[t]he severity of the violations

does not require execution of the entire 360-month sentence.”            See Minn. Sent.

Guidelines III.B (2008) (stating that, when considering whether to revoke a stayed

sentence, “[l]ess judicial forbearance is urged for persons . . . who were convicted of a

more severe offense”).

       Moreover, although the district court did not explain why it refused to execute

only a portion of Ponthieux’s entire sentence, the record shows that the court considered

the length of the sentence when deciding whether to revoke, noting that the court’s “only

hesitation” was that “360 months is a really long time.” Ultimately, the district court

indicated that its decision to revoke was not “a close call,” despite the length of the

sentence, concluding that Ponthieux is a public-safety risk and that he is not amenable to

probation.

       In conclusion, the district court did not erroneously omit findings required under

Austin and Modtland, and it did not otherwise abuse its broad discretion by revoking

Ponthieux’s probation and executing his entire stayed sentence. We therefore affirm.

       Affirmed.




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