This opinion will be unpublished and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
Joshua Ryan Patrow,
Filed November 28, 2006
St. Louis County District Court
File No. K7-00-10155
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, 300 South Fifth Avenue, Virginia, MN 55792 (for respondent)
John M. Stuart, State Public Defender,
Ngoc Nguyen, Assistant Public Defender,
Considered and decided by Ross, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Joshua Patrow challenges the district court’s order revoking his
probation and executing his 86-month sentence of imprisonment for a first-degree
controlled substance crime. Patrow
argues that the district court revoked his probation without making the findings
required by State v. Austin, 295
N.W.2d 246 (
Joshua Patrow pleaded guilty in June 2001 to drug-related charges. The district court honored the parties’ plea agreement and imposed a sentence of 33 months’ incarceration for fourth-degree controlled-substance crime, followed consecutively by 86 months of stayed incarceration for first-degree controlled-substance crime. Patrow was released to probation in November 2004 after serving 29 months of the 33-month sentence. Patrow’s probation conditions required him to remain law-abiding, abstain from alcohol and illegal drugs, and comply with any other conditions established by probation.
Patrow never reported to probation. His probation officer wrote to him regarding the failure to report. Patrow responded by leaving the officer a message five days later, saying that he was in the Twin Cities area seeking employment. The officer replied by leaving Patrow a message ordering him to call back to reschedule the required meeting. Patrow did not call again.
In addition to failing to report to the probation department, Patrow incurred another drug charge. On December 22, the probation officer reported to the district court that Patrow violated the conditions of his probation by failing to report and by incurring the new controlled-substance charge since being released from prison. The report recommended that the court revoke Patrow’s probation and execute the 86-month stayed sentence of incarceration.
Patrow appeared before the district court in May 2005 for arraignment on a driving charge. The district court used this opportunity to address the then five-month-old alleged probation violations. Although Patrow did not admit the pending drug offense, he admitted that he failed to report to the probation department. The district court therefore found that Patrow had violated the conditions of his probation and scheduled a disposition hearing regarding the violation for August 15, 2005.
In July 2005, before Patrow’s hearing, he had another encounter with law enforcement, and the state charged him with driving with a suspended license. At the scheduled August 15 probation hearing, Patrow pleaded guilty to the driving charge, but he asked for a continuance to September 19 for disposition of the probation violation. The court granted the request. When Patrow appeared in September, the court ordered a presentence investigation and scheduled sentencing for the violation for October.
At the October hearing, Patrow contested the probation department’s recommendation that the court execute the stayed portion of his sentence. He contended that he played only a “very minor” role in his post-release drug offense, that he has been a law-abiding citizen, and that he is not a candidate for prison. The district court continued the matter for two weeks to obtain relevant information regarding any credit Patrow may be entitled to for time served.
Before the rescheduled hearing, however, Patrow was again stopped while driving and charged with driving after suspension and without proof of insurance. Two days after this latest charge Patrow and his probation officer had a meeting in which he allegedly had drug paraphernalia in his possession and admitted to the officer that he had used methamphetamine.
The disposition hearing on Patrow’s probation violation finally occurred on October 17, 2005. Patrow contended that he had remained “relatively clean” since his release from prison. But the state noted that Patrow had pleaded guilty to the post-release drug charge, and it urged the court to execute Patrow’s stayed sentence. The district court highlighted Patrow’s December 2004 “offense” and told him, “[N]ow a week before you are to appear here for sentencing, it’s alleged that you had in possession drug paraphernalia, and that you have admitted using methamphetamine.” The district court revoked Patrow’s probation and executed his 86-month prison sentence. This appeal follows.
D E C I S I O N
Patrow argues that the
district court abused its discretion because it failed to make proper findings
before revoking his probation. We
agree. A district court has broad
discretion to determine if there is sufficient evidence to revoke probation and
we reverse only if the district court clearly abused its discretion. State
v. Modtland, 695 N.W.2d 602, 605 (
The district court made only
one of the three findings required by Austin
and Modtland, and that finding is somewhat
confusing. At the disposition hearing,
the district court cited Patrow’s “offense in December,” but it did not state
whether it was referring to Patrow’s failure to report or his alleged
possession of a controlled substance. The
district court also referred to Patrow’s alleged possession of drug
paraphernalia in October 2005 and his admission to his probation officer that
he had been using methamphetamine. But
it did not indicate whether the new allegations were sustained or whether they
support revocation. Of these various alleged
potential violations, Patrow’s only admission in district court was in May 2005,
when he admitted to failing to report to his probation officer. Although it is unclear whether the district
court intends to include only one, some combination, or all of the alleged
offenses as support for the revocation, it expressly found only Patrow’s
failure to report to be a probation violation based on Patrow’s admission. That finding is sufficient for us to conclude
that the district court designated a specific, violated condition, as
district court made no findings that address the second and third
Patrow argues that he is entitled to be reinstated to probation as the remedy for the district court’s failure to make the required findings. We disagree and remand for additional findings. See id. at 608 (reversing and remanding for new hearing because district court did not address either the second or third Austin factor before revoking probation); Erickson v. State, 702 N.W.2d 892, 898 (Minn. App. 2005) (reversing and remanding when record failed to indicate factors district court relied on when revoking probation).
Because we conclude that the
district court’s failure to make the necessary
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.