This opinion will be unpublished and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
                                       A14-0203

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                   Alton Dominique Finch,
                                         Appellant.

                                 Filed September 15, 2014
                                         Affirmed
                                     Bjorkman, Judge


                               Hennepin County District Court
                                  File No. 27-CR-13-4158

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant challenges the revocation of his probation, arguing (1) the district court

erred by denying his motion to remove for cause without referring the motion to the chief
judge of the district and (2) the need for confinement does not outweigh the policies

favoring probation. We affirm.

                                          FACTS

       On February 8, 2013, appellant Alton Finch was charged with second-degree

assault. His case was assigned to a district court judge and he filed a notice to remove as

of right pursuant to Minn. R. Crim. P. 26.03, subd. 14(4). The district court judge

referred the motion to the chief judge, who denied the motion as untimely because the

district court judge had already presided over a motion in the case. The chief judge then

treated the motion as seeking removal for cause, and denied the motion because there had

been no rulings in the case. Finch was convicted of second-degree assault following a

stipulated-facts court trial. The district court granted a dispositional departure, imposing

a stayed 36-month sentence.

       As a condition of probation, Finch was ordered to serve 365 days in the Hennepin

County Adult Corrections Facility (ACF). On August 19, 2013, he left the ACF on an

approved medical furlough, and did not return or contact his probation officer regarding

his whereabouts. A warrant was issued for his arrest. On September 2, Finch turned

himself in to authorities, and told his probation officer that he had left Minnesota to go to

Wisconsin for a family funeral. As a result of his actions, Finch was charged with and

pleaded guilty to felony escape from custody. The day before his probation-violation

hearing, Finch filed a motion to disqualify the district court judge on the grounds of bias

and partiality. The district court judge denied the motion without referring it to the chief

judge and found that Finch had violated his probation terms. After determining that the


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need to confine Finch outweighs the policies favoring probation, the district court

revoked Finch’s probation, and executed his prison sentence. Finch appeals.

                                    DECISION

I.     The district court did not err by declining to refer Finch’s motion to remove
       for cause to the chief judge of the district.

       A motion to remove a judge for cause is governed by the rules of criminal

procedure. Hooper v. State, 

 (Minn. 2004). Under the rules, “[a]

judge must not preside at a trial or other proceeding if disqualified under the Code of

Judicial Conduct.” Minn. R. Crim. P. 26.03, subd. 14(3). A request to disqualify a

district court judge for cause “must be heard and determined by the chief judge of the

district.”   

   The code requires a judge to “disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably be questioned.” Minn.

Code Jud. Conduct R. 2.11(A). The code defines “impartial” and “impartiality” as the

“absence of bias or prejudice in favor of, or against, particular parties or classes of

parties, as well as maintenance of an open mind in considering issues that may come

before a judge.” State v. Pratt, 

 (Minn. 2012) (quotation omitted).

We review de novo whether a judge is disqualified from presiding over a case. In re

Jacobs, 

 (Minn. 2011).

       We initially note that Finch did not seek prohibition, which is the proper remedy

for challenging the denial of a motion to remove a judge for cause. See State v. Laughlin,

 (Minn. App. 1993) (“Prohibition is the appropriate remedy to

pursue when a motion or notice to remove for cause has been denied.” (citing State v.



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Poole, 

 (Minn. App. 1991)); see also Minn. R. Civ. App.

P. 121.01 (permitting an oral petition for writ of prohibition in an emergency situation);

Minn. R. Crim. P. 28.01, subd. 2 (providing that the Minnesota Rules of Civil Appellate

Procedure govern appellate procedure unless the rules of criminal procedure direct

otherwise). But even if we overlook Finch’s technical error, his argument fails on the

merits for two reasons. See State v. Pflepsen, 

 (Minn. 1999) (stating

that the court of appeals has authority to suspend technical requirements of the rules).

       First, by presenting his motion to the district court judge he sought to remove,

Finch waived his right to a hearing before the chief judge. We have recognized that,

despite the clear directive of rule 26.03, a party is entitled to bring his disqualification

motion before the judge who is the subject of the motion. Poole, 

(holding that appellant who presented motion to remove for cause to district court judge

he sought to remove had not waived his right to seek prohibition by bringing motion

before challenged judge instead of chief judge). Finch chose to do just that. He directed

his notice of motion and motion to the district court judge, requesting an order “by the

Court, recusing herself from hearing this case.” Finch also moved “[i]n the alternative”

for an order “by the Court, directing the Chief Judge of the District Court to make a

determination as to whether this Court should hear the above encaptioned case.” By

phrasing his relief in the alternative, Finch invited the district court to hear the motion.

Moreover, he did not seek review by the chief judge between November 1, when the

district court denied his motion, and November 6, when the probation-violation hearing

concluded. On this record, we conclude that Finch waived his right to bring his removal


                                             4
motion to the chief judge. See State v. Matthews, 

 (Minn. 2010)

(“Failure to include all defenses, objections, issues, and requests in a motion constitutes a

waiver.” (quotation omitted)); State v. Halseth, 

 (Minn. App. 2002)

(explaining that an attorney may waive certain nonfundamental rights, including

decisions pertaining to the conduct of trial); State v. Wells, 

 (Minn.

App. 2002) (holding defense counsel waived speedy trial requirement by agreeing to

omnibus hearing date outside of time limit provided for in rules of criminal procedure),

review denied (Minn. Mar. 19, 2002).

       Second, Finch’s motion to remove for cause fails on the merits. We determine

whether a judge’s impartiality may reasonably be questioned by objectively examining

the relevant circumstances and considering “whether a reasonable examiner, with full

knowledge of the facts and circumstances, would question the judge’s impartiality.”

Jacobs, 

. Finch argues that the district court judge should have

disqualified herself due to bias. He first points to the district court judge’s request to hear

his probation-violation hearing as indicative of a personal interest in the outcome of the

case. We disagree. A judge’s impartiality cannot be questioned because they presided

over more than one aspect of a case. See, e.g., Poole, 

 (holding no

partiality based on the mere fact that a trial judge considering a suppression motion

related to a search warrant is the same judge that issued the warrant). Hennepin County

district court policies expressly permit sentencing judges to preside over probation-

violation hearings at their request. That the district court judge both sentenced Finch and

determined whether he violated his probation terms is not sufficient to show partiality or


                                              5
bias. See Hannon v. State, 

 (Minn. 2008) (stating that adverse

rulings do not, in and of themselves, demonstrate judicial bias).

       Finch next asserts that the district court judge’s statements at the probation-

violation hearing, regarding the sentencing departure and the court’s disappointment that

Finch violated his probation, reflect bias. But the district court made these statements at

the time it revoked Finch’s probation. Because this argument was not presented to the

district court in connection with the motion to remove, we will not consider it. Roby v.

State, 

 (Minn. 1996) (declining to review an argument for the first

time on appeal).

II.    The district court did not abuse its discretion by revoking Finch’s probation
       because clear and convincing evidence demonstrates that the need for
       confinement outweighs the policies favoring probation.

       A district court has broad discretion to determine whether there is sufficient

evidence to revoke probation and will not be reversed absent an abuse of discretion.

State v. Ornelas, 

 (Minn. 2004). The state has the burden of proving

the offender violated his probation terms by clear and convincing evidence. Minn. R.

Crim. P. 27.04, subd. 3.

       Before revoking probation, the district court must “1) designate the specific

condition or conditions that were violated; 2) find that the violation was intentional or

inexcusable; and 3) find that need for confinement outweighs the policies favoring

probation.” State v. Austin, 

 (Minn. 1980). In assessing the third

factor, the district court must balance the offender’s interest in remaining at liberty

against the state’s interest in rehabilitation and public safety, considering whether:


                                              6
                     (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.

.

       Finch does not dispute that the first two Austin factors were satisfied, but argues

that there is not clear and convincing evidence that the need for confinement outweighs

the policies favoring probation. We are not persuaded. The district court found that

Finch needs correctional treatment that can be most effectively provided in a confined

setting and that it would unduly depreciate the seriousness of his violation if his probation

were not revoked. In making these findings, the district court determined that Finch left

ACF “under false pretenses,” failed to communicate his desire to attend a funeral in

Wisconsin to ACF representatives, did not contact his probation officer, and remained at

large for approximately two weeks. The district court rejected Finch’s testimony that he

attempted to contact his lawyer and probation officer while he was in Wisconsin as not

credible, and found that Finch falsely testified that he asked ACF staff for permission to

attend the funeral. While Finch is correct that his probation officer recommended against

revocation, the officer had never met Finch before the violation, and he testified that he

could not express any opinion about whether Finch would benefit from incarceration or

probation because of his limited exposure and time spent with Finch. The record amply

supports the district court’s findings that the need for confinement outweighs the policies

favoring probation.



                                             7
      Finch characterizes the district court’s decision to revoke his probation as a

“reflexive reaction to an accumulation of technical violations.” See 

 (quotation

omitted). But committing a new felony, leaving a court-ordered placement and the state

without permission, and failing to maintain contact with probation officers are not mere

technical violations.   The transcript reflects that the district court considered the

testimony of Finch, ACF staff, and the probation officer assigned to work with Finch

after he completed his time at ACF. Because the district court considered all of the

circumstances of Finch’s violation and made the required findings, we conclude the court

did not abuse its discretion by revoking Finch’s probation.

      Affirmed.




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