This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000). 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-295

           

State of Minnesota,

Respondent,

 

vs.

 

Ronald Francis McBride,

Appellant.

 

Filed June 26, 2001

Affirmed

Shumaker, Judge

 

Ramsey County District Court

File No. K698986

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant).

 

 

Heard and considered by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.           

U N P U B L I S H E D  O P I N I O N

GORDON W. SHUMAKER, Judge

            This is an appeal from an order revoking probation and executing a stayed sentence.  Appellant argues that his second probation violation was not sufficient to warrant incarceration.  We affirm.

FACTS

After appellant Ronald McBride pleaded guilty to burglary in the first degree, the district court departed dispositionally from the sentencing guidelines and stayed a 58-month sentence.  The court placed McBride on probation for 20 years on various conditions, including requirements that he abstain from the use of alcohol and nonprescription drugs, that he report to his probation officer as directed, and that he keep his probation officer apprised of his whereabouts.

About a year later, McBride tested positive for cocaine.  McBride denied using drugs and speculated that someone must have put drugs into his soft drink.  On the probation officer’s recommendation, the court took no action.

The following month, McBride tested positive for cocaine and amphetamines.  The court issued a probation violation arrest warrant, but McBride did not voluntarily surrender.  The authorities arrested him two months later.

At a probation violation hearing, the court found that McBride had violated his probation by using cocaine and by failing to report to his probation officer.  The court imposed four-months’ incarceration in the workhouse and continued McBride’s probation with the express warning that future violations would result in revocation of probation.

Five weeks after his release from the workhouse, a breathalyzer test showed McBride’s blood-alcohol level to be 0.06%.  The probation officer decided not to submit a probation violation to the court.

About two months later, a test showed McBride’s blood-alcohol level to be 0.031%.  The probation officer obtained a probation violation arrest warrant and instructed McBride to surrender immediately.  McBride failed to do so and was apprehended six months later.

At his probation violation hearing, McBride admitted testing positive for alcohol twice and failing to report to his probation officer until he was arrested.  He explained that the second time he had alcohol in his system was the result of his taking “Nyquil,” which his dentist recommended for pain.  He produced a letter from the dentist verifying the recommendation.  As to his failure to stay in contact with his probation officer, McBride explained that he was taking care of his terminally ill sister and her family.

The court revoked McBride’s probation, finding that McBride intentionally and inexcusably failed to abstain from alcohol, failed to report to his probation officer, failed to surrender to custody as directed, and absconded from probationary supervision for approximately six months.  Concluding that McBride’s need for incarceration outweighed the policy favoring probation, the court vacated the stayed sentence and imposed the presumptive sentence of 58 months.  McBride appeals.

D E C I S I O N

The 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.

 

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  According to the Minnesota Sentencing Guidelines, a probation revocation is justified when, “[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay.”  Minn. Sent. Guidelines III.B.

The court must find clear and convincing evidence of the probation violation. Minn. R. Crim. P. 27.04, subd. 3(3).  And, before it may revoke probation, the court must do three things:

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.

 

 Austin, 295 N.W.2d at 250. 

At McBride’s second probation violation hearing, the court did all three things that are prerequisites to probation revocation.  McBride argues that there was no clear and convincing evidence that his violations were intentional and inexcusable because he had innocent explanations and offered corroboration.

The court was aware of McBride’s probationary history.  It included repeated failures to comply with some conditions and repeated warnings by the probation officer and the court that further violations would result in the revocation of probation.  Although it is helpful for the court to make more particular findings on how violations were intentional and inexcusable, appellate courts will not find an abuse of discretion for a failure to make such findings if the record contains sufficient evidence to warrant the revocation.  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).

The district court was entitled to consider McBride’s probationary history as reflective of the truthfulness of the excuses he offered.  That history, showing continual use of prohibited substances and several failures to report to or follow the directives of the probation officer, substantially diminishes or negates the validity of McBride’s explanations.  Furthermore, McBride offered no reason whatsoever for not contacting his probation officer and keeping him informed of McBride’s whereabouts.  Even if McBride was caring for his sister, that would not be a reasonable excuse for not reporting to the probation officer.  The evidence in the record clearly and convincingly supports the court’s conclusion that the violations were intentional and inexcusable.

McBride also argues that the record does not support the district court’s finding that the need for confinement outweighs the policies favoring probation because his violations were minor.  At the second probation violation hearing, the court addressed this factor:

Given these violations and given the fact this is a second violation, and given also the fact that I originally departed from the guidelines in this case, I also find that the policy [in] favor of probation is outweighed by the need for incarceration in this case. 

 

We recognize that the presumptively appropriate sentence for McBride’s crime is a commitment to prison.  The court departed from that presumptive sentence and imposed probationary conditions that would help McBride in his rehabilitation.  McBride’s repeated violations of some of the conditions and his choice to ignore the repeated warnings of his probation officer and the court compel the conclusion that probation is not effective for McBride.  The district court may properly revoke probation when an offender persists in violating conditions of the stayed sentence.  Minn. Sent. Guidelines III.B; Theel, 532 N.W.2d at 267.  In the face of repeated violations, the district court need not assess the gravity of each violation.  The record amply supports the court’s determination that McBride was not succeeding on probation and that the sole alternative is incarceration.

Affirmed.