This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Gene C. Ewers,
Wabasha County District Court
File No. K1-03-892
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Nordstrom,
John M. Stuart, State Public Defender, James R. Peterson,
Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.
Appellant challenges the district court’s revocation of his probation. Because the finding and the record do not provide an adequate basis for the district court’s conclusion that the policies favoring continued probation for appellant are outweighed by the need for confinement, we reverse.
Gene C. Ewers was charged with felony first-degree driving while impaired
(DWI). Appellant pleaded guilty. On May 5, 2004, the district court sentenced
appellant to a presumptive guidelines sentence of 48 months with execution
stayed and placed him on probation for seven years with numerous
conditions. On October 26, 2004,
the outset of probation, appellant and Officer Francis discussed the
possibility of transferring probation supervision to the state of
September 22, 2004,
this time, appellant was employed and had informed the probation office of the name
of his employer. Lynner testified that
he called appellant’s place of employment and left a message for
appellant. Lynner indicated that he then
waited approximately two weeks to hear from appellant before returning the
transfer denial to Francis in
appellant was subject to a medium supervision level, he was required to check
in with his probation officer at least once a month. Francis filed a report stating that appellant
violated his probation because appellant failed to contact either
issue on appeal is whether appellant’s probation violation supports
revocation. Probation violations must be
proven by clear and convincing evidence.
district court must make three specific determinations before it revokes
probation: (1) that a specific condition of probation was violated; (2) that
such violation was intentional or inexcusable; and (3) that the need for
confinement outweighs the policies favoring probation. State v.
Modtland, 695 N.W.2d 602, 606 (
As directed by this court, on remand the district court was required to make explicit findings on the second and third factors. Therefore, we begin with the premise that appellant in fact committed a violation of his probation and confine our review to considering whether the district court abused its discretion in its findings on the remaining factors. The second factor requires a determination that appellant intentionally or inexcusably violated the conditions of his probation. See id. at 606. The district court determined that appellant’s failure to contact probation officials between “August 11th of ‘04, when he met with Mr. Francis to prepare the interstate transfer papers, and December 5th of ‘04, when he was arrested” was an intentional failure by appellant to comply with the conditions of probation.
Here, there is a minimal factual dispute. The record indicates that attempts to contact appellant were complicated by the fact that he apparently had two residences: one with his mother and one with his children. Second, even when appellant was staying with his mother, his ability to receive messages was compromised by her ailing health and illiteracy. Third, appellant testified that he had returned calls to Lynner. Finally, based on Francis’s instruction to “hang tight,” appellant understood Francis’ supervision was informal while the transfer request was being processed. We also note that in addition to the stayed jail sentence, there were four special conditions of appellant’s probation agreement: pay a $50 fine; “[b]e law abiding and of good behavior in all respects;” “[n]o alcohol/illegal drug use,” enforced with random drug testing; and complete a chemical-dependency program. There were other general terms of probation including reporting as directed. There is no allegation that any violation occurred other than maintaining contact. We recognize that the duty to stay in contact with a probation officer is central to the concept of probation and appellant’s failure to maintain contact is serious and may be considered inexcusable. Also, we note factual differences between appellant’s account and that of Lynner about phone messages. The district court found that this violation was intentional and inexcusable. Given our deference to the district court’s factual determinations, we conclude that the district court did not abuse its discretion in concluding that appellant intentionally or inexcusably failed to comply with the terms of his probation.
third factor requires the district court to determine whether the need for
confinement outweighs policies favoring probation. Modtland,
695 N.W.2d at 606. In considering this
factor, “we emphasize that . . . policy considerations may require that
probation not be revoked even though the facts may allow it and that the
purpose of probation is rehabilitation and revocation should be used only as a
last resort when treatment has failed.”
(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.
the violation of probation was a failure to keep in contact with probation
authorities. Appellant pleaded guilty to
felony first-degree DWI. Such a charge
requires at least three prior DWI convictions.
Appellant was working and was living with his mother and with his children. Although the district court noted that part of the purpose of the contact condition was to ensure that appellant remained sober, the record does not disclose why confinement of appellant is necessary to protect the public. There is no allegation of drinking, substance abuse, improper use of a vehicle, criminal conduct of any sort, or any other violation of probation. Also, appellant apparently served limited jail time and completed a chemical-dependency program. Other than his potential risk to society as an alcohol impaired driver, there is no evidence that appellant presents a risk to public safety. There is no claim that confinement was needed for added treatment. Finally, the district court does explain why failure to revoke probation will unduly depreciate the seriousness of the violation.
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