This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





George Henry Smith,



Filed September 11, 2001


Willis, Judge


Goodhue County District Court

File No. K200415


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


Stephen N. Betcher, Goodhue County Attorney, R. Erich Schulenberg, Assistant County Attorney, 454 W. Sixth Street, Red Wing, MN  55066 (for respondent)


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


            Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s order revoking probation imposed for second-degree controlled-substance crime, arguing that (1) the evidence did not support a finding that appellant’s failure to complete recommended chemical-dependency treatment aftercare was intentional and (2) policies favoring probation were not outweighed by need for confinement.  Because the district court’s findings of fact were not clearly erroneous, we affirm.



In March 2000, appellant George Smith was found to be in possession of more than 21 grams of cocaine.  He pleaded guilty to one count of controlled-substance crime in the second degree, a violation of Minn. Stat. § 152.022, subd. 2(1) (2000).  The presumptive sentence for a person with Smith’s criminal-history score was 68 months in prison.  The district court, concluding that Smith was amenable to probation, stayed imposition of sentence and placed him on probation for ten years.  As conditions of probation, the court ordered Smith to:  (1) serve 270 days in the county jail, with credit for time served; (2) submit to a chemical-dependency evaluation and follow the evaluator’s recommendations; (3) comply with the aftercare recommendations of any treatment program in which he participated; (4) follow the rules of the probation department; and (5) remain law-abiding.  The district court also informed appellant, “If you violate one of those five conditions, then in all probability you’re going to end up serving a lengthy prison sentence.”

While in jail, Smith received a chemical-dependency evaluation.  The psychologist who conducted the evaluation noted that Smith “clearly exhibits features sufficient for a diagnosis of Alcohol Dependence and Cocaine Dependence.”  Smith was referred to, and completed, a chemical-dependency program while in jail.  Bud Holladay, Smith’s chemical-dependency counselor, recommended that he participate in aftercare with Holladay.  Smith was released from jail in July 2000. 

In September 2000, Smith informed his Goodhue County probation officer, Nick Francis, that he wanted his probation transferred to Hennepin County.  Francis submitted a transfer request and told Smith to remain in contact with him until the transfer was processed.  In January 2001, Smith was arrested after Francis, who had not heard from him since requesting the transfer, filed a probation-violation report.

At Smith’s probation-revocation hearing, the state asserted that he had failed to participate in aftercare in either Goodhue or Hennepin County.  Smith testified that Hennepin County never informed him that he needed to participate in aftercare.  He also testified that he did not feel that he needed aftercare because he knew that using illegal drugs could kill him.  In a letter to Francis presented at the hearing, chemical-dependency counselor Holladay noted that he had been unable to provide aftercare services because Smith had not given him an address or telephone number.  The district court concluded that Smith had intentionally evaded aftercare by not providing a current, truthful address or telephone number to his aftercare provider.  The court told Smith:

I’ve heard no fact that suggests you’re amenable to probation * * *.  The record reflects that you in 1997 had treatment for three months.  You were, nevertheless, back committing the offense on March 19th, 2000 for which you were convicted.  You also have a controlled substance crime conviction in August, 1994.  You have a pattern of long term, continuous of showing that you’re not a person who either can be or will be rehabilitated through the very good faith efforts of [the district court in its] original disposition.  So apparently 270 days together with everything ordered by [the district court] was not enough.


The court revoked Smith’s probation and executed the 68-month sentence with credit for time served.  Smith appeals the court’s revocation of his probation.  


The district court has broad discretion in deciding whether to revoke probation, and a reviewing court will reverse only if there has been a clear abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  To justify a revocation of probation, the district court must find clear and convincing evidence that a defendant violated the conditions of his or her probation.  Minn. R. Crim. P. 27.04, subd. 2(1)(b); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).  Before probation can be revoked, the district court must (1) specify the condition or conditions that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.  The district court “acts as a factfinder in weighing the credibility of the witnesses,”  Moot, 398 N.W.2d at 23, and its factual findings are subject to a clearly erroneous standard of review.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

            Smith argues that the record does not support the district court’s finding that his failure to participate in aftercare was intentional.  Smith testified that after his probation was transferred to Hennepin County, he believed that Goodhue County was no longer responsible for his aftercare.  Further, he testified that he did not pursue aftercare in Hennepin County because his caseworker there never informed him that he needed to do so.  But in establishing the conditions of probation, the sentencing court clearly informed Smith that he must participate in any recommended aftercare.  In a letter to probation officer Nick Francis, the chemical-dependency counselor who was to provide Smith’s aftercare services wrote that he had been unable to maintain contact with Smith because Smith had not provided an address and only called him from pay phones with no return telephone numbers.  Based on this record, the district court found that Smith intentionally evaded recommended aftercare.  That finding appears to turn largely on credibility determinations, which Smith has not shown to be clearly erroneous.

            Smith also challenges the district court’s finding that the need for confinement outweighed the policies favoring probation.  The purpose of probation is rehabilitation, and revocation should be used only as a last resort when treatment has failed.  Austin, 295 N.W.2d at 250.  Thus, the district court must balance the probationer’s interest in freedom against the state’s interest in insuring rehabilitation and the public safety.  Id.  The decision to revoke probation cannot be “a reflexive reaction to an accumulation of technical violations” but requires a showing that the “offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”  Id. at 251 (quotation omitted).  Thus, a court should not revoke probation and order imprisonment unless

(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.


Id.  (quoting American Bar Association Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

Here, the district court found that Smith was in need of chemical-dependency treatment and that he had been able to complete such treatment while in prison.  Citing Smith’s 1994 controlled-substance-crime conviction, 1997 treatment for chemical dependency, and arrest in 2000 for possession, the district court determined that Smith was unwilling to pursue treatment while on probation.  In effect, the court found that treatment could be provided most effectively if Smith were confined.  This finding is not clearly erroneous, and the district court did not, therefore, abuse its discretion in determining that policy considerations required revocation of Smith’s probation.  See id. (affirming revocation where, because appellant had been offered treatment but “failed to take advantage of the opportunity or show a commitment to rehabilitation, it was not unreasonable to conclude that treatment had failed.”); see also Moot, 398 N.W.2d at 21 (affirming revocation where, by failing to participate in treatment, defendant refused “one last chance” to succeed at treatment); State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (affirming revocation where defendant’s response to treatment was poor and he was considered unamenable to treatment in another program).