                         This opinion will be unpublished and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
                                    A14-1857

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                  Gene Paul Schave,
                                     Appellant.

                                 Filed March 2, 2015
                                       Affirmed
                                 Cleary, Chief Judge

                            Hennepin County District Court
                              File No. 27-CR-10-38210


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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Lee R. Wolfgram, The Wolfgram Law Firm, Ltd., Minneapolis, Minnesota (for
appellant)


         Considered and decided by Cleary, Chief Judge; Bjorkman, Judge; and Reyes,

Judge.
                        UNPUBLISHED OPINION

CLEARY, Chief Judge

      Appellant Gene Paul Schave challenges the revocation of his probation and the

imposition of his sentence. Schave argues that the district court abused its discretion by

finding that his violation of the terms of his probation was intentional or inexcusable.

Because the record supports the district court’s conclusion that Schave’s probation

violation was not excusable, we affirm.

                                          FACTS

      On September 14, 2010, appellant Gene Paul Schave pleaded guilty to possession

of pornographic work involving a minor, in violation of Minn. Stat. § 617.247, subd. 4(a)

(2010). The presumptive sentence was 15 months stayed. The district court sentenced

Schave to a stay of imposition and a three-year probationary period. Schave’s probation

was conditioned upon his completion of a sex-offender treatment program.

      In January 2011, Schave entered an outpatient sex-offender treatment program

offered by Project Pathfinders. In November 2011, Schave was placed on a behavior

contract because of his therapists’ concerns that he was unmotivated and continuing to

withhold information regarding previous victims. Schave’s probation officer discussed

Schave’s lack of progress with him in December 2011. Schave and his probation officer

discussed whether an inpatient-treatment program would be more appropriate for him and

the possibility that Schave’s sleep apnea may have been interfering with his treatment.

Schave felt he was making adequate progress through the Project Pathfinders program




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and decided to remain in outpatient treatment. Schave’s probation officer encouraged

him to obtain treatment for his sleep apnea.

       In January 2012, Schave was placed on a second behavior contract because of

continued lack of progress and behavioral concerns.         In November 2013, Schave’s

probation was increased by one year (to expire November 2014) to give him more time to

complete treatment. In January 2014, Schave was discharged from Project Pathfinders

for not making progress. Schave’s probation officer subsequently filed a probation-

violation report.

       At Schave’s probation-violation hearing, the district court found clear and

convincing evidence that Schave had violated a material condition of his probation

because he had not completed court-ordered treatment and did not have adequate time

remaining on probation to complete treatment. The district court also found that the

violation was intentional and inexcusable, citing the multiple attempts by Schave’s

therapists and probation officer to motivate him. In addition, the district court found that

Schave’s sleep apnea condition did not “rise to the level of . . . a legal excuse” for his

probation violation, because he could have sought treatment and failed to do so. Finally

the district court found that the public policy favoring probation was outweighed by the

need for confinement. As a result, the district court ordered execution of Schave’s 15-

month sentence. Schave appeals from the district court’s order executing his sentence.

                                     DECISION

       The district court has broad discretion in determining whether to revoke a

defendant’s probation. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). We


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review the court’s decision that sufficient evidence exists to revoke probation for an

abuse of discretion. Id. Before revoking probation, the district court must follow the

three-step analysis established in Austin by (1) designating the specific condition of

probation that has been violated, (2) determining that the violation was intentional or

inexcusable, and (3) finding that the need for confinement outweighs the policies

favoring probation. Id. at 250.

      Schave only challenges the district court’s finding as to the second factor, the

district court’s determination that the violation was intentional or inexcusable. Schave

raises three arguments why the court abused its discretion in finding that Schave’s

violation was intentional or inexcusable. First, Schave argues that his failure to complete

treatment is excusable because his sleep apnea “causes him to feel drowsy during the day

and have trouble with concentration and attention.” The court found that Schave’s sleep

apnea did not excuse Schave’s failure to complete treatment because Schave knew about

the condition in 2011 and knew then that he needed to seek treatment. Schave argues

here that he was unable to afford treatment. However, Schave did not raise this argument

before the district court, so we decline to consider it here. See Roby v. State, 547 N.W.2d

354, 357 (Minn. 1996) (holding that litigants are bound on appeal by the theories upon

which the action was tried below). Because Schave did not timely raise or seek help for

the issue of sleep apnea, the district court acted within its discretion in finding that

Schave’s sleep apnea did not excuse his failure to complete treatment.

      Second, Schave argues that his failure to complete treatment is excusable because

the professionals assigned to his case improperly required him to make the decision


                                            4
whether he would transition to inpatient treatment. Schave points out that his probation

officer was concerned, as of December 2011, that Schave was “not amenable to

outpatient treatment.” At that time, Schave and his probation officer discussed whether

Schave would be able to complete his treatment in an outpatient setting, and Schave

decided that he could. Schave argues that, because he was not professionally qualified to

make such a decision, his probation officer should have asked the court to order inpatient

therapy rather than leaving the decision to him.

       The record supports the conclusion that it was appropriate for Schave to make the

decision whether to transition to inpatient treatment. Schave’s probation officer and

therapists informed him multiple times that his progress in outpatient treatment was

inadequate, and Schave stated each time that he would attempt to improve his

performance. Because of these intervention attempts, Schave was aware that he was

making slower progress than was necessary to complete treatment. Schave’s probation

officer testified that she offered Schave the option of inpatient treatment as a way for him

to focus more efficiently on completing his treatment. Schave made the decision to stay

in outpatient treatment despite his knowledge that (1) his progress might be too slow to

complete outpatient treatment within the probationary period, and (2) a potentially more-

efficient option was available. This decision did not require Schave to have professional

skills and the district court did not abuse its discretion by discrediting this argument.

       For Schave’s third argument that his failure to complete treatment is excusable,

Schave asserts that sex-offender treatment inevitably requires longer to complete than the

probationary period. However, the evidence presented at Schave’s hearing does not


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support this assertion. Schave’s probation officer testified that a few individuals are able

to complete treatment within 18 months, but most individuals complete treatment after

two or three years of therapy followed by six to twelve months of aftercare. Rather than

supporting Schave’s argument that it is impossible to complete treatment within the

probationary period, the probation officer’s testimony supports the conclusion that most

individuals are able to complete treatment within the probationary period.

       This conclusion holds true for Schave as well.          Schave entered treatment in

January 2011 and was discharged from treatment in January 2014 for lack of progress.

Schave’s four-year probationary period was not set to expire until November 2014 and

could have been extended to the statutory maximum of five years. According to the

probation officer’s testimony, if Schave had made typical progress through treatment, he

should have been able to complete treatment well within the potential five-year

probationary period, if not within his actual four-year probationary period. Conditioning

probation upon completion of treatment was not unreasonable or unrealistic, and the

district court did not abuse its discretion in discrediting this argument.

       Because none of Schave’s arguments excuse his probation violation, the district

court did not abuse its discretion in concluding that Schave’s probation violation was

intentional or inexcusable.

       Affirmed.




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