This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Patrick James Modtland,
Filed August 10, 2004
Kanabec County District Court
File No. K5-03-101
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Hudson, 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 revocation of his probation, arguing that the court abused its discretion by reaching its decision without finding that the need for his confinement outweighed the policies favoring probation. Because the record supports the revocation, we affirm.
On January 28, 2003, appellant Patrick James Modtland burglarized a home in Mora and stole various items, including some hunting guns. Modtland was arrested on February 13 and charged with first-degree burglary while possessing a firearm, in violation of Minn. Stat. § 609.582, subd. 1(b) (2002); second-degree burglary, in violation of Minn. Stat. § 609.582, subd. 2(a); theft of firearms, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(1) (2002); and third-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2(a) (2002).
While in Kanabec County jail awaiting trial, Modtland applied for and was accepted into the Minnesota Teen Challenge (MTC) program, a Christian faith-based drug-and-alcohol treatment program in Minneapolis. It normally takes a participant 12 to 18 months to complete the program, and approximately half of the MTC’s participants have been sent to the program as a condition of probation.
Modtland pleaded guilty to the first- and second-degree-burglary charges. In accordance with a plea agreement, the state recommended the presumptive sentence under the sentencing guidelines. Modtland asked the district court to stay the sentence and to place him on probation, with completion of the MTC program to be a requirement of the probation. Modtland, through his court-appointed counsel, argued that previous prison terms had failed to rehabilitate him or deter him from criminal activity, and he urged the court to “give him one last chance at a program . . . that has been proven to be effective in helping criminals.” The district court committed Modtland to the commissioner of corrections for 107 months, the low end of the presumptive-sentence range, but stayed execution of the sentence and granted Modtland’s request for probation with the requirement that he complete the MTC program. The court further ordered that if Modtland failed to complete the MTC program, none of the time he spent in the program would count against his 107-month sentence.
Modtland began the MTC program on June 30, 2003, and was discharged on September 30, 2003, without having completed the program. At a probation-revocation hearing, Modtland admitted that he had violated a condition of his probation but requested that, rather than executing the 107-month sentence, the court allow him to reenter the MTC program. The MTC discharge report and testimony of MTC’s program director and MTC’s dean of men show that Modtland was discharged because of angry and hostile conduct directed at staff members, including repeated threats to sue MTC or go to another treatment program, and at least one attempt to avoid participation in scheduled activities. MTC’s program director also testified that Modtland did not seem to appreciate MTC’s efforts to help him. Despite Modtland’s problems at MTC, the staff members testified that MTC would be willing to accept him back into the program.
The prosecutor and Modtland’s probation officer both recommended that the court revoke Modtland’s probation and execute his sentence. The court followed their recommendations and committed Modtland to the commissioner of corrections for 107 months. This appeal follows.
D E C I S I O N
Modtland argues that the district court abused its discretion by revoking Modtland’s probation without finding that the necessity of confinement outweighed the policies that favor probation, as required by State v. Austin, 295 N.W.2d 246, 250-51 (Minn. 1980). A 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.” Id. at249-50. When 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.” Id. at 250. The district court here did not explicitly address the three Austin factors when it revoked Modtland’s probation.
Modtland contends that a court’s failure to make explicit findings on the Austin factors is a sufficient basis for reversal of the revocation of his probation. But a district court must make specific findings addressing the Austin factors only when the probationer asserts at the probation-revocation hearing that the state has presented insufficient evidence to satisfy the factors. State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995). Otherwise, this court may affirm the probation revocation if satisfaction of the Austin factors is sufficiently supported by the record. Id. at 552-53. Here, Modtland did not assert at the probation-revocation hearing that the Austin factors had not been satisfied. Therefore, we may affirm the revocation of his probation if there is sufficient record evidence to show that the requirements of Austin have been met.
Modtland concedes that the first two Austin factors were satisfied and challenges only whether the third factor--that the need for confinement outweighs the policies favoring probation--was satisfied. The supreme court has stated that the third Austin factor is satisfied if
(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 (citing A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)). While only one of these circumstances must be shown to satisfy the third Austin factor, we find all three are supported by the record here.
First, Modtland’s probation officer, who was familiar with Modtland’s extensive criminal record,recommended that Modtland be committed to the commissioner of corrections because, in her opinion, Modtland “seems to be a huge risk to public safety.” Therefore, there is support in the record for a determination that confinement is necessary to protect the public from further criminal activity by Modtland.
Second, at the probation-revocation hearing, Modtland testified that the reason he was discharged from MTC was that he “didn’t express [himself] in the right way.” Modtland further testified that he wanted help and believed that MTC could give him the help that he needs. The district court was skeptical of the sincerity of Modtland’s testimony, stating from the bench that Modtland had “manipulate[d] the system” to get into the MTC program and that it did not believe that MTC could change Modtland. We defer to the district court’s credibility determinations. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). The district court further stated that prison offered benefits that Modtland could take advantage of if he so chose, telling Modtland that “[y]ou can get an education there, you can stay away from drugs there, you can find meaningful work there, and you can come out a better person than you went in.” Implicit in the district court’s statements is a determination that the treatment that Modtland needs can more appropriately be provided in prison than in the MTC program. Because Modtland failed treatment in a non-confined program, the record supports the district court’s determination that the treatment that Modtland requires can most effectively be provided in a confined setting.
Third, the record also shows that the seriousness of Modtland’s probation violation would be unduly depreciated if probation were not revoked. Modtland specifically urged the sentencing court to stay his sentence so that he could participate in MTC, and he was then discharged from the program for failing to conduct himself appropriately. The seriousness of Modtland’s violation would be depreciated if he were allowed to avoid revocation of his probation after failing to complete the MTC program when he explicitly asked the sentencing court to make completion of the program a condition of his probation. See also Austin, 295 N.W.2d at 251 (holding that the seriousness of probationer’s violation would be depreciated if probation were not revoked when probationer violated probation by leaving a drug-treatment program without permission).
The record shows that the third Austin factor was satisfied. The district court did not abuse its discretion by revoking Modtland’s probation.
Modtland raises three issues in his pro se brief. He contends first that his discharge from the MTC program was unconstitutional. This claim was not raised in the district court, and, therefore, we decline to address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court generally will not consider matters that were not argued and considered in the district court).
Modtland also argues that he was entitled to have his probation-revocation hearing presided over by the same judge who presided at his sentencing hearing. The district court concluded at the probation-revocation hearing that Modtland was not entitled by any rule or statute to have the same judge preside over both hearings. Modtland argues that Minn. Stat. ch. 590 requires that the sentencing judge must preside over any subsequent consideration of a defendant’s petition for postconviction relief and that “the same legal reasoning should apply” to probation-revocation hearings.
But chapter 590 does not require the same judge to preside over a defendant’s sentencing and postconviction hearings. Under Minn. Stat. § 590.01, subd. 1(2) (2002), a defendant seeking postconviction relief must file his petition “in the district court in the county in which the conviction was had.” Minn. Stat. § 590.02, subd. 3 (2002), provides that the chief judge of that district court must then “promptly assign the matter to a judge in said district.” Neither chapter 590 nor any other Minnesota statute or rule of court requires that the postconviction petition be assigned to the same judge who sentenced the petitioner. Similarly, no Minnesota statute or rule of court requires that a probation-revocation hearing be presided over by the same judge who sentenced the probationer.
Modtland also moves this court “to have a missing section of the transcript printed” or to have the parties stipulate to what was said during the part of the proceeding for which the transcript is missing. It is unclear what transcript Modtland refers to; the file submitted to this court includes full transcripts of all relevant hearings. Thus, this request for relief is without merit.
 Modtland’s criminal record includes eight juvenile offenses, 13 adult misdemeanor offenses, and eight adult felony offenses.