This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Olmsted County District Court
File No. K9970724
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, No. 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Olmstead County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
The district court revoked appellant’s probation and executed his 111-month prison sentence for first-degree burglary. On appeal, appellant argues that the district court abused its discretion in revoking his probation based on his expulsion from the court-ordered chemical-dependency treatment program for misbehavior in class because his misconduct did not warrant revocation. We find no abuse of discretion, and we affirm.
Appellant Michael Riley was charged with one count of burglary in the first degree and one count of assault in the fifth degree after he forcefully entered his ex-girlfriend’s apartment and physically assaulted her. In April 2001, appellant pleaded guilty to the charge of burglary in the first degree.
Based on appellant’s criminal-history score of 11 and an offense severity level of 7, appellant’s presumptive sentence was 111 months commitment to the commissioner of corrections. At the sentencing hearing in June 2001, appellant moved for a downward departure. The district court departed downward from the presumptive guidelines sentence and ordered that the execution of the sentence be stayed for 20 years, upon conditions that included one year in jail, 20 years of probation, and successful completion of the Teen Challenge chemical-dependency treatment program and recommended aftercare. At the hearing, the district court stated that if appellant was unsuccessful in the Teen Challenge program, the district court would be left with no option but to execute the sentence. The district court’s reasons for the downward departure were that appellant was amenable to probation and to chemical-dependency treatment; appellant had not attempted the Teen Challenge program in the past; appellant was remorseful and admitted his past failures at treatment; appellant wanted treatment and would benefit from it; appellant demonstrated a good attitude in court; and appellant had positive support from his family.
In early April 2002, after completing approximately 9 months of the 12-month Teen Challenge residential treatment program, appellant was discharged because of his disruptive behavior during an evening study hall. Appellant started making “bird noises” in front of approximately 60 other students, which became increasingly louder until they were a shrill scream. Despite the staff’s repeated requests for appellant to stop, he continued to make the noises. The dean of the facility informed appellant that his refusal to stop would be taken as a choice to leave the program and that he could leave or they would have the police escort him out. With that warning, appellant left the facility and has been refused readmittance into the Teen Challenge program.
Because of his dismissal from the program, appellant’s probation officer recommended that if the district court found appellant to be in violation of his probation, appellant’s probation be revoked and that his prison sentence be executed. The district court found that appellant had intentionally violated the condition of probation requiring him to complete the Teen Challenge program and that, in light of his criminal history and the current underlying offense, the need for confinement outweighed the policies favoring probation. The district court revoked probation and executed appellant’s prison sentence. Appellant now challenges the revocation.
A district court has broad discretion in determining whether to revoke probation, and this court will reverse the revocation only if the district court has clearly abused its discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The purpose of probation is to rehabilitate a probationer, “and revocation should be used only as a last resort when treatment has failed.” Id. at 250. Under Austin’s three-part analysis in determining whether to revoke a defendant’s probation, the district court must
(1) designate the specific condition[s] * * * that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that [the] need for confinement outweighs the policies favoring [continued] probation.
Id. If the district court fails to make express findings, we will not reverse its decision if the record contains sufficient evidence to support the revocation. State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989).
In this case, the district court found that appellant intentionally and inexcusably violated the condition of his probation requiring him to successfully complete the Teen Challenge program and recommended aftercare. The district court also found that the need for confinement at this point in the proceedings outweighed the policies favoring probation.
Appellant argues that even if his disruptive behavior could be construed as an intentional probation violation, the need to have him confined does not outweigh policies favoring probation because this was his first probation violation; he had complied with the other conditions of probation; he had not been convicted of any new crimes; he had maintained contact with his probation officer after dismissal from the program; and he had taken affirmative steps to get accepted into a different treatment program.
Appellant offers no argument as to why his conduct would not constitute an intentional probation violation, and the record supports the district court’s finding that appellant’s misconduct was an intentional probation violation. Accordingly, we review whether the district court’s finding on the third Austin factor that the need for confinement outweighs policies favoring continued probation is supported by the record.
In determining whether the need for confinement outweighs the policies favoring probation, the district court should consider whether
(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.
Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).
Appellant’s current offense is a violent burglary in the first degree, which carries a severity level of VII, and he has a criminal history score of 11. Because of appellant’s current violent offense and his lengthy criminal history, the district court did not need to show as much restraint when revoking probation. See State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (stating that “less judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history”) (quoting Austin, 295 N.W.2d at 250). As such, the district court did not abuse its discretion by revoking appellant’s probation to protect the public from further criminal activity by appellant.
The record supports the finding that appellant’s treatment can most effectively be provided at this time if he is confined. The record indicates that Teen Challenge was an intensive, long-term, in-treatment program and that appellant made progress in the program. Despite any progress that appellant made at Teen Challenge, he was also disciplined, in addition to being dismissed for his disruptive behavior, for hiding his anti-depressant medication. An alternative treatment program that subsequently was willing to admit appellant was not an intensive, long-term, in-treatment facility and thus was not comparable to Teen Challenge.
Finally, the sentencing court had placed appellant on probation as the last option to avoid going to prison and had emphasized that if appellant did not complete the treatment program, the court would have no choice but to send appellant to prison. At the revocation hearing, the district court noted that
Teen Challenge was plainly the centerpiece of the probationary decision in this case made by [the sentencing court]. And right, wrong, [Teen Challenge’s] fault, your fault, I don’t know whose fault, you got yourself kicked out of Teen Challenge. So the program which was your ticket to probation in this matter was rendered unavailable to you.
Thus appellant was offered treatment as a final alternative to prison but failed to successfully complete the program because of his own intentional misconduct that violated his terms of probation. In this light, the seriousness of his violation would be diminished if probation were not revoked.
Because it is within the district court’s discretion to revoke probation and because the record supports the district court’s determination that the need for confinement outweighs the policies favoring probation, we conclude that the district court did not abuse its discretion err in revoking appellant’s probation.