This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Leo Bernal,


Filed December 26, 2006


Stoneburner, Judge


Otter Tail County District Court

File No. K8041487


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


David J. Hauser, Otter Tail County Attorney, Ryan C. Cheshire, Assistant County Attorney, Suite 320, 121 West Junius, Fergus Falls, MN 56537 (for respondent)


John M. Stuart, Minnesota Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the revocation of his probation, arguing that the evidence did not establish that the need for confinement outweighed the policies favoring probation.  Appellant also argues that the district court failed to make adequate findings to support revocation.  Because evidence in the record is sufficient to sustain revocation and the district court’s findings on the record are adequate, we affirm.



            Appellant Leo Bernal does not contest the district court’s findings that he willfully violated numerous provisions of his felony-DWI probation.  His only issues on appeal are that the evidence does not establish that the need for confinement outweighs the policies favoring probation and that the district court failed to make adequate findings on this factor.

            The district court should not revoke probation for a violation of probation terms unless the offender’s conduct is such that:

(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.


State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (citing State v. Austin, 295 N.W.2d 246, 251 (Minn. 1980)).  Whether the district court has made the findings required under Austinin a probation revocation proceeding presents a question of law, which we review de novo.  Id. at 605.

            The issue of whether the need for confinement outweighs the policies favoring probation was specifically argued to the district court before the district court made findings on the record revoking Bernal’s probation.  Counsel for Bernal argued that Bernal is now willing to go to treatment, even long-term inpatient treatment, despite past failures and missed start dates for treatment, and if he is in prison, he will not receive necessary treatment.  The state argued that there are no resources available for Bernal for treatment in the community and that he can receive treatment in prison.  The state noted that Bernal’s history demonstrates he does not want treatment and argued that his history of DWI offenses, coupled with his willful violations, which included alcohol consumption and failure to pursue available treatment, raise serious concerns for public safety.

            In response to Bernal’s arguments based on Austin and Modtland, the district court specifically stated that those cases do not leave the district court powerless when an individual is a repeat offender, violates the conditions of probation, and is deemed not amenable to probation by the probation officer.  Otherwise, the appellate courts would “leav[e] the bench totally powerless to do anything when the [c]ourt deems it in the best interests of society that the person do the time.”  The district court went on to find Bernal “completely in violation of probation,” and stated it had no choice but to execute the sentence.  The prosecutor asked: “[I]s the [c]ourt specifically finding that the confinement in this matter outweighs any policy of probation?” And the district court responded: “Yes.  Thank you for including that.”

            Before Modtland, a district court’s failure to make specific findings on the Austinfactors would not result in reversal if we found that sufficient evidence in the record supported revocation.  See, e.g., State v. Theel, 532 N.W. 2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995); see also Austin, 295 N.W.2d at 250 (affirming revocation of probation despite district court’s failure to make a finding regarding the condition of probation violated).  Modtland rejected this approach and requires that the district courts make findings under each Austin factor to assure that they “create thorough, fact-specific records setting forth their reasons for revoking probation.”  Modtland, 695 N.W.2d at 608.  Modtland noted that the Austin findings are not merely procedural requirements; rather, courts “must seek to convey their substantive reasons for revocation and the evidence relied upon.”  Id.  Under Modtland, district courts “should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of the appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.”  Id.  Modtland requires a district court to make “written findings” on the Austinfactors.  Id.  “The ‘written findings’ requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review.”  Id. n. 4.

            We find the district court’s findings on the factor that the need for confinement outweighs policies favoring probation adequate.  The district court’s comments about its ability to revoke the probation of a repeat offender who violated the conditions of probation and is considered not amenable to probation for many reasons, and for whom the court deems it in the best interests of society “to do the time,” clearly relate to Bernal.  The district court was speaking directly to Bernal when it stated: “You’re completely in violation of probation.  You’re not amenable to treatment.  The [c]ourt has no choice but to execute the time . . . .”  The court answered affirmatively when asked by the prosecutor if it was finding that confinement outweighs any policy of probation based on the reasons asserted in the record.  While Modtland may have contemplated a more formal structure to the district court’s findings, it would be an abuse of judicial resources to remand this case solely for the purpose of having the district court reorganize the wording of its findings.         


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.