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OAH 58-1100-21197-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF CORRECTIONS
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In the Matter of Jon Ray Olson |
FINDINGS
OF FACT, CONCLUSIONS
AND ORDER |
This
matter came on for hearing before Administrative Law Judge Administrative Law Judge (ALJ)
Krista Guinn Fink, Associate Legal
Counsel, Minnesota Department of Corrections, appeared on behalf of the Department
of Corrections (DOC). Jon Ray Olson (the
Respondent) appeared on his own behalf.
His mother, Sharon Olson, also appeared and testified.
STATEMENT OF THE ISSUE
Is the Department authorized to collect from Respondent, through the Minnesota Revenue Recapture System, a supervision fee of $180.00 pursuant to Minn. Stat. § 241.272 ?
Based on the evidence in the hearing record, the Administrative Law
Judge makes the following:
FINDINGS OF FACT
1.
On
November 20, 2007, Respondent was placed on probation for the offense of
possession of controlled substances.[1] On November 26, 2007, Respondent reported to
his Corrections Agent, David Leal, at the Buffalo Office of the Department of
Corrections. Agent Leal informed Respondent
of his liability for an annual $120.00 supervision fee pursuant to Minn. Stat.
§ 241.272, subd. 2. [2]
2.
When he met
with Agent Leal, Respondent signed a one-year probation agreement. He understood that, upon completion of the
terms of probation, his probation would end on November 20, 2008.[3]
Respondent’s mother accompanied him to
that meeting. She also understood Agent
Leal to say that Respondent’s probation would end in November 2008 if
Respondent complied with the terms of the probation.[4]
3.
On February
27, 2008, Respondent called the probation office to let them know that he had
completed his jail time and to ask whether he should come in to meet with Agent
Leal. He was told by a support staff
person to attend his group meeting on March 20th. Respondent told the staff person that he had nine
months left on his probation, but the staff person said that he was on
probation until 2012.[5]
4.
On
October 29, 2008, Respondent paid the $120.00 fee. By that time, Respondent had completed a
required chemical abuse program. At that
point, he believed he had completed all the terms of probation and that it
would end the next month.[6]
5.
Respondent
heard nothing from the probation office until December 2009. At that time, Corrections Agent Cindy Ernhart
sent a letter to Respondent telling him that he had to set up probation classes
for 2010 and, apparently, assessing a $180.00 fee for supervision from November
2008 to November 2009.[7]
Respondent’s mother contacted Agent
Ernhart about what the fee was for and why the Agent thought Respondent was
still under supervision. Agent Ernhart
explained that Agent Leal had been reassigned in June 2008 and that
Respondent’s case had been assigned to her.
Because she had 550 cases, she had not been able to get to Respondent’s
case until December 2009. She told
Respondent’s mother that the $180.00 supervision fee was for supervision for
the 2008-09 probation year.
6.
Respondent’s
mother explained to Agent Ernhart that Respondent’s probation was to have ended
in November 2008 in accordance with the probation agreement. After speaking with Respondent’s mother,
Agent Ernhart processed the paperwork for the dismissal of Respondent’s case.[8]
7.
On
December 29, 2009, a Wright County District Court Judge signed an Order
dismissing the charges against Respondent and discharging him from probation
without an adjudication of guilt.[9]
8.
By a
letter the Department received on February 18, 2010, from Respondent’s mother,
the Respondent contested the claim for supervision fees. This hearing process followed.
9.
In the
letter requesting a hearing, it appears that the $180.00 fee had already been
taken from Respondent through revenue recapture by the time of the hearing
request.[10] Similarly, at hearing, the Respondent’s
mother indicated that a refund of the $180.00 is being requested.[11]
Based on the Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. The ALJ has jurisdiction in this matter
pursuant to Minn. Stat. §§ 241.272, 270A.08 and 270A.09.
2. The Notice of Hearing was proper and the DOC
has fulfilled all procedural requirements.
3. Respondent
became liable for an annual
supervision fee of $120.00 on November 20, 2007 as a supervision fee for
2007-08. Respondent paid the fee in
October 2008, as required.
4. The
5. It is appropriate for the Department of
Revenue to collect a supervision fee to defer costs of supervision only when
supervision occurs and a probationer is actually required to be on probation.
6. Respondent
is not liable for $180.00 additional supervision fee.
Based on the
Conclusions, the ALJ makes the following:
ORDER
IT IS ORDERED:
1.
The
Department of Corrections may not collect the supervision fee of $180.00 from
Respondent.
2.
If the
Department has already collected the $180.00 from Respondent, it shall refund
that amount within 30 days.
Dated: April 27, 2010
s/
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LINDA F. CLOSE Administrative Law Judge |
Reported: Digitally recorded
No Transcript Prepared
NOTICE
This Order is the final
Decision in this matter pursuant to Minn. Stat. § 270A.09, subd. 3. Any person aggrieved by this Decision may seek
judicial review pursuant to Minn. Stat. §§ 14.63 to 14.68.
MEMORANDUM
The issue in this case is when Respondent’s
probation ended. If it ended in November
2008, as Respondent believes, then his obligation for the 2007-08 supervision
fee ended when he paid the $120.00 supervision fee in October 2008. If it ended in 2009, when the paperwork to
formally end it was finally filed with the Court, the fee should not have been
opposed.
The ALJ has concluded that the Department has
not met its burden of showing that the Respondent was actually under
supervision and, further, was required to be under supervision according to the
terms of probation.
The purpose of the supervision fee is to
defray the costs of supervision.[12]
The Department has failed to show any
supervision activity between the end of October 2008, when it received the
supervision fee for 2007-08 from Respondent, until December 2009 when it
assessed a new fee.
Respondent and his mother were stunned to
receive the letter, in December 2009, from Agent Ernhart assessing a
supervision fee.[13] Respondent’s mother credibly testified about
her conversation, in December 2009, with the agent. Agent Ernhart admitted that her letter to
Respondent was her first contact since the case had been reassigned in
mid-2008. The Department produced no log
notes or other documents to show otherwise. It seems clear that no actual supervision
occurred during the time for which the Department is requesting an additional
fee.
In addition, it also appears that Respondent
had not been officially released from probation solely due to the inaction of
the Department. Significantly, the
Department failed to offer at hearing the full contents of Exhibit 2, which had
attached to it, among other documents, the November 2007 Probation Agreement
showing a one-year period of supervision.
Both Respondent and his mother credibly testified as to their
understanding of the probation’s duration based on the agreement. Also missing was the attachment showing
Respondent’s completion of the chemical use assessment in 2008, during the
period the probation agreement was in effect.
When Respondent completed the terms of his probation in November 2008,
it was incumbent on the Department to return to court so that the case against
Respondent could be dismissed. Based on
the testimony, the ALJ concludes that the Respondent did what was required of
him to be taken off probation, and it was only the Department’s failure to
follow up that caused Respondent’s status to remain as a probationer. Under these circumstances, it is patently
unfair to assess or collect a supervision fee.
Because the record is
unclear whether the Department has already collected the $180.00, the Order is stated
in the alternative so that a refund will issue if the money has been paid to
the Department through revenue recapture.
L.
F. C.
[1]. Ex. 3.
[2] Ex. 3. At that time, the Department charged an annual fee of $120.00. In 2008, it switched to a per case assessment. A felony level fee, which is involved in this matter, is $300.00. Ex. 3.
[3] See Ex. 2. Exhibit 2 is a copy of a letter written by Respondent’s mother to Corrections Agent Cindy Ernhart in February 2010. Attached to that letter was a copy of the Wright County Services Probation Agreement setting probation at one year. Although the Department entered the Exhibit, it did not provide a copy of the Agreement or any of the other attachments to that letter.
[4] Test. of Respondent; Test, of Sharon Olson.
[5] Ex. 3, Contact Detail.
[6] Ex. 3; Test. of Respondent.
[7] The letter assessing the fee was not offered as an exhibit by the Department. Like the Probation Agreement referenced in footnote 3 above, the assessment letter had attached to Respondent’s mother’s letter of February 16, 2010, the Department offered as Exhibit 2. As indicated in footnote 3, none of the attachments were offered with the letter.
[8] Ex. 2; Test. of S. Olson.
[9] Ex. 3.
[10] Ex. 2.
[11] Test. of S. Olson.
[12] Minn. Stat. § 241.272, subd. 2.
[13] Test. of S. Olson; Test. of Respondent.