State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0645

State of Minnesota,
Respondent,

vs.

Daniel Amor,
Appellant.

Filed December 18, 2017
Affirmed
Ross, Judge

Kandiyohi County District Court
File No. 34-CR-09-574

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Daniel Amor appeals from the district court’s order revoking his probation and
executing his 33-month prison sentence for second-degree criminal sexual conduct. Amor
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argues that the district court reflexively revoked his probation based on its unsupported
finding that he failed to complete sex-offender treatment. Because the record supports the
district court’s conclusion that Amor intentionally and inexcusably violated a condition of
his probation and that the need for his confinement outweighs the policies favoring
probation, we affirm.
FACTS
Daniel Amor entered an Alford guilty plea to second-degree criminal sexual conduct
in April 2010. The district court imposed a stayed sentence of 33 months’ imprisonment
and 25 years’ probation. The district court conditioned Amor’s probation on various
requirements, including that he follow the recommendations of a psychosexual
examination and meet with a therapist. The psychologist who conducted Amor’s
psychosexual examination recommended, among other things, that Amor complete sex-
offender treatment. The sentencing judge warned Amor that if he lied or otherwise failed
to cooperate in treatment, the court would revoke his probation. Amor began treatment
through a plan administered by CORE Professional Services P.A. in 2010.
Amor’s probation officer recommended in 2015 that the district court revoke
Amor’s probation. The officer had various concerns, including those stated in a letter from
CORE revealing that it had terminated Amor from its treatment program because he failed
to pay fees, failed to sufficiently progress, failed treatment assignments, failed to attend all
scheduled sessions, and appeared to lack motivation to complete the program. Amor
admitted that he was discharged from the CORE program, had contact with minor females,
left the state without permission, and failed to be truthful with his probation officer. The
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district court found that Amor intentionally and inexcusably violated conditions of his
probation. It urged Amor to participate in treatment and to be truthful. It found that
rehabilitation efforts should continue and maintained the probation.
In August 2016, Amor’s probation officer learned that CORE had again terminated
Amor’s treatment and he again reported the violation to the district court. The district court
heard testimony from Amor, CORE therapist Rebecah Hoffman, and Amor’s expert
witness, Richard Ascano, clinical director for Lakeland Mental Health Center. Amor
testified that his poor relationship with Hoffman made it difficult for him to actively
participate in treatment. Hoffman testified that Amor was not adequately progressing, not
following the recommendations of CORE staff, minimiz ing his sexual-offen se history,
inconsistently disclosing necessary information, and, despit e multiple extensions, never
scheduling his “maintenance polygraph” examination (which CORE uses to assess
treatment compliance). Ascano opined that Amor is a low-risk offender who should not be
imprisoned and who could be treated without confinement.
The district court found that Amor intentionally and inexcusably failed to complete
sex-offender treatment and that his need for confinement outweighs policies favoring
probation. It executed Amor’s 33-month prison sentence. Amor appeals.
D E C I S I O N
Amor challenges the district court’s decision to revoke his probation. Before it
revokes probation, the district court must find that (1) the offender violated a specific
condition of probation, (2) the violation was intentional or inexcusable, and (3) the need to
confine the offender outweighs the policies favoring probation. State v. Austin, 295 N.W.2d
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246, 250 (Minn. 1980). Whether the district court has made adequate findings is a question
of law that we review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). But
we review the district court’s application of the Austin factors for an abuse of discretion.
Id. Amor argues that the district court erred in every step. We address each one.
The district court first found that Amor violated a specific condition of probation :
completing sex-offender treatment. Amor maintains that the condition did not identify any
specific sex-offender treatment and therefore cannot support the specific-condition finding.
He adds that, even if the condition did require him to complete CORE’s treatment plan
specifically, he had many years of probation and the condition included no deadline. But a
probationer who has no intention to complete sex-offender treatment can be found to have
violated probation even if the condition does not specify a deadline or any particular
treatment program. See State v. Rock, 380 N.W.2d 211, 212–213 (Minn. App. 1986),
review denied (Minn. Mar. 27, 1986). And the district court had in fact put Amor on notice
that he must complete CORE treatment specifically, premising Amor’s previous probation
violation in part on his failure to participate in the CORE program. This defeats Amor’s
argument on the first step.
Amor challenges the district court’s next step, contesting its finding that the
violation was intentional and inexcusable. A probationer who does not intend to complete
treatment intentionally and inexcusably violates a condition of probation or is unamenable
to the treatment. See id. Amor maintains that his attempt to meet with a different therapist
and his expert’s testimony about his alleged anxiety about treatment at CORE prove that
his violation was excusable and unintentional. This is akin to the weight-of-the-testimony
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argument that the supreme court rejected in Austin. 295 N.W.2d at 248–50 (rejecting
arguments that appellant’s violation was excusable because he feared starting the assigned
drug-treatment program and that it was unintentional based on his effort to enter other
programs). Amor’s individual-therapist requirement was distinct from the requirement to
complete treatment. His effort to secure a different therapist therefore does not impact his
failure to complete treatment. And inasmuch as his expert’ s opinion that Amor failed
treatment because of anxiety was inconsistent with Hoffman’s testimony that Amor failed
treatment because he lacked effort, the district court sitting as fact-finder was free to choose
which theory best fit the evidence. The district court did not abuse its discretion by
determining that Amor intentionally and inexcusably failed the CORE program.
Amor argues finally that the district court revoked his probation without balancing
the policies favoring probation against the need for his confinement. But the district court
explained why the need for Amor’s confinement outweighs policies favoring his continued
probation in part by outlining the evidence showing why Amor needed confinement: even
after “the Court allowed him to be reinstated on probation” he still failed to schedule a
polygraph examination; “he was unable to successfully complete the program [because] he
was minimizing his involvement and he was denying responsibility”; he had been failing
to “invest[] in the program” by “mak[ing] meaningful efforts to comply with the program”;
and he was failing “to be honest while he was meeting with the staff .” The reasoning is
adequate.
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We are satisfied that the district court acted within its discretion by revoking Amor’s
probation.
Affirmed.