This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Daniel Allen Warren,




Filed June 1, 2004


Anderson, Judge


Clay County District Court

File No. K5-02-2364


John Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Lisa N. Borgen, Clay County Attorney, Stephanie J. Borgen, Assistant County Attorney, 807 Eleventh Street North, P.O. Box 280, Moorhead, MN  56561-0280 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            After his most recent of multiple convictions for driving while impaired, appellant was sentenced to 48 months in prison, but execution of that sentence was stayed provided that appellant successfully complete in-patient chemical dependency treatment.  After appellant failed to complete his treatment program, the district court revoked his probation and ordered execution of the sentence.  Appellant appeals from the order executing his sentence.  We affirm.


            Appellant has numerous convictions for driving while impaired.  Most recently, on December 7, 2002, appellant was arrested for a number of offenses, including first-degree driving while impaired.  Appellant pleaded guilty to first-degree driving while impaired and driving after cancellation.  On March 6, 2003, appellant was sentenced, inter alia, to 48 months in prison with execution stayed on the condition that appellant successfully complete probation, including a requirement to successfully complete in-patient treatment for chemical dependency treatment at Share House.  At the sentencing hearing, the district court stated, “[I]f [appellant] leaves or fouls up on that program that he’s in . . . the court will consider it as a violation of the terms and conditions of the stay and basically what it will mean is he’ll go to prison.”  On March 27, 2003, the district court learned that appellant had been removed from Share House and had not completed the program; a subsequent hearing was scheduled to consider revocation of appellant’s probation and execution of his sentence. 

            At the hearings on appellant’s failure to complete the program, appellant conceded that he had failed to complete the program but argued that he had not violated his probation due to the nature of his discharge.  One reason appellant was discharged after four or five days in the program was because his girlfriend was in his room in violation of Share House rules.  Appellant testified that she was there just to help him move and that Share House staff mischaracterized her visit. 

Another reason appellant was discharged was that the employees at the Share House believed he was disruptive, which he did not contest.  Appellant admitted that he had angry outbursts at Share House.  Finally, appellant also admitted that he had not reported directly to the jail after discharge from Share House, as required by the sentencing order. 

Appellant testified that he had anger management issues and wanted counseling for these issues.  Appellant further stated that he had successfully completed chemical dependency treatment in 2000.  The district court acknowledged that those who are chemically dependent frequently have problems with anger management.  The district court continued the hearing to determine if there was an appropriate anger management program for appellant. 

            There was testimony that there was an anger management program suitable for appellant, but there were difficulties in paying for the program.  Throughout the hearings, the district court stated that it had a decided preference to place appellant in a treatment program instead of prison.  But, ultimately, the district court revoked appellant’s probation, explicitly finding him “unamenable to probation,” and ordering that his sentence be executed.  This appeal followed.


            “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).  “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.”  Id. at 250.  “The decision to revoke 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 (quotations omitted).  Those with long criminal histories are entitled to less forbearance in revocation proceedings than those without long criminal records.  State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (citing Minn. Sent. Guidelines III.B.), review denied (Minn. Sept. 25, 2002). 

1.  Findings

            Appellant argues that the district court committed reversible error in failing to make explicit findings other than that appellant violated the terms of his probation.  The district court must engage in a three-step analysis prior to revoking probation: (1) identify the specific terms that were violated, “(2) find that the violation was intentional or inexcusable,” and (3) find that the need to confine the defendant outweighs the policy that probation is favored.  Austin, 295 N.W.2d at 250.  The district court has not abused its discretion, even if there are not express findings on the three Austin factors, if there is sufficient evidence in the record to justify the revocation.  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).

            Appellant is incorrect that the district court must make explicit findings regarding the Austin factors.  In the absence of such findings, this court has, at times, refused to examine the record to determine if it supports the revocation.  See e.g. State v. Balma, 549 N.W.2d 102, 105-06 (Minn. App. 1996) (stating that this court will not review the record but will simply reverse where there are no findings); see also State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995) (stating that it was an abuse of discretion for the district court to fail to make express findings when the defendant explicitly referenced Austin at the probation revocation hearing).  But even those decisions requiring explicit findings acknowledged that the general rule is that “when the trial court has failed to make the three Austin findings, the reviewing court may nevertheless affirm the trial court’s revocation of a stayed sentence, provided that there is sufficient evidence in the record to support the necessary findings.”  Balma, 549 N.W.2d at 105; see Hlavac, 540 N.W.2d at 552-53 (stating the general rule is that this court should not reverse despite a lack of explicit findings if there is sufficient evidence on the record to support revocation).  More recent case law confirms that it is not error for the district court to fail to make explicit findings where the record otherwise supports revocation of probation.  See e.g. Hamilton, 646 N.W.2d at 918 (stating, “While we would prefer that the district court make explicit findings on each element articulated in Austin, we conclude on this record that the district court’s decision to revoke Hamilton’s probation was amply supported by the evidence and was not an abuse of discretion”).

Because appellant did not request explicit findings, Hlavac does not apply; therefore, there is only an abuse of discretion if the facts in the record do not establish sufficient cause to revoke the defendant’s probation.  In fact, in Austin there were not explicit findings and the supreme court nonetheless affirmed after reviewing the record.  295 N.W.2d at 250-52.  Therefore, the district court’s failure to make explicit findings in this case does not constitute an abuse of discretion, and the real question is whether the facts indicate that the district court abused its discretion in revoking appellant’s probation.

2.  Intentional or inexcusable conduct

In State v. Xiong, the defendant was ordered, as part of his probation, to have no contact with gang members.  638 N.W.2d 499, 501 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  The defendant was later arrested while in the presence of gang members, but his probation was not revoked.  Id.  Subsequently, the defendant was again observed to be in contact with gang members.  Id.  At his probation revocation hearing, the defendant testified that he had been visiting his girlfriend and a gang member had stopped by during that time.  Id.  The district court explicitly stated that it viewed the defendant’s violations as “intentional and inexcusable.”  Id. at 502.  In affirming, this court stated:

 In light of the warnings the district court gave [the defendant] at the time of the original sentence . . . it was clear that [the defendant] was expected to avoid any gang contact whatsoever.  The court acted within its discretion by finding that [the defendant]’s presence at his girlfriend’s home, where he could expect gang members to visit, was an intentional and inexcusable violation of the condition of his probation.


Id. at 503.

Here, there is sufficient evidence to indicate that appellant’s conduct was intentional or inexcusable.  Appellant admits his girlfriend was in his room at Share House in violation of house rules, and this admission is sufficient to affirm the district court’s implicit conclusion that appellant’s actions were intentional.

Moreover, appellant did not report to jail as ordered.  Appellant conceded that he knew he was to immediately report to jail if he was removed from the treatment program.  Appellant’s failure to report directly to jail, after unambiguously being ordered to do so by the district court, is an intentional violation of his probation.

The same can be said of appellant’s discharge from Share House.  He was ordered to complete treatment at Share House.  When appellant engaged in activity that jeopardized his treatment, thus forcing the Share House to discharge him, appellant was engaging in conduct that appellant knew could lead to a violation of his probation.  Appellant’s angry outbursts and violations of Share House’s rules, which resulted in his discharge from the program, constitute an intentional violation of his probation because appellant knew he had to complete treatment at Share House.

Because there is sufficient evidence of intentional violations of the probation requirements, the district court did not abuse its discretion in concluding appellant had intentionally violated his probation.

3.  Need to confine

Appellant also challenges whether the need to confine appellant outweighs the policies favoring probation.  Appellant argues that the fact that the district court stated a preference for probation establishes that the need to confine appellant does not outweigh the presumption in favor of probation.

  Warnings that particular behavior violates the terms of the defendant’s probation and may result in revocation of probation indicate that there is a greater need for confinement.  See Theel, 532 N.W.2d at 267 (holding that two warnings given to the defendant that failure to fulfill one of the terms of his probation may result in a revocation of probation indicated that the need for confinement outweighed policies in favor of probation).

Here, there is sufficient evidence to support the conclusion that the need to confine appellant outweighs the policies in favor of probation.  Appellant has a long criminal history, particularly for the offense for which he was on probation, driving while impaired.  Because appellant is a repeat offender, he is entitled to less forbearance, see Hamilton, 646 N.W.2d at 918 (stating that those with long criminal histories are entitled to less forbearance), and his multiple convictions for this offense indicate that he is unwilling to reform his behavior and must therefore be confined to protect the public.  Appellant was also warned at his sentencing hearing that he would be sent to prison if he did not fulfill the terms of his probation.  See Theel, 532 N.W.2d at 267 (holding that warnings given to a defendant that noncompliance with the terms of probation will result in revocation support revocation of probation when the terms are violated). 

The fact that the district court expressed a preference for probation is not an indication that the need to confine appellant does not outweigh the policies favoring probation.  In fact, quite the opposite is true here.  The district court struggled to find some way to avoid revoking appellant’s probation.  The fact that the district court preferred probation but found after multiple hearings and much thought that revocation was the only alternative demonstrates conclusively that the district court concluded that the need to confine appellant outweighed policies in favor of probation.

The district court did not abuse its discretion in revoking appellant’s probation.