This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Joseph Harvey Bellanger,
Filed February 6, 2007
Cass County District Court
File No. K9-05-184
Lori Swanson, Attorney General,
Earl Maus, Cass County Attorney, Christopher J. Strandlie, First Assistant Cass County Attorney, P.O. Box 3000, Walker, MN 56484 (for respondent)
John M. Stuart, State Public
Defender, James R. Peterson, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Joseph Bellanger
challenges the district court’s order revoking his probation imposed for
third-degree assault, arguing that the court erred by revoking probation
without making oral or written findings on the Austin factors, as required by Modtland. Appellant argues that the district court’s
decision from the bench did not show a consideration of the
Joseph Bellanger pleaded guilty to third-degree assault in June 2005. The district court stayed Bellanger’s 42-month
prison sentence and placed him on probation for five years, subject to certain
conditions. On October 17, 2005,
Bellanger admitted that he violated his probation by using, possessing, or
purchasing alcohol or controlled substances.
The court ordered that Bellanger was to continue on probation and
released him directly to a chemical-dependency treatment facility. In November 2005, Bellanger again admitted that
he violated his probation by consuming alcohol, and the district court released
him to treatment at the Mash-Ka-Wisen facility.
In March 2006, Bellanger admitted violating the probation conditions of
failure to abstain from mood-altering chemicals, failure to remain law-abiding,
and failure to complete a Rule 25 assessment and follow its
recommendations. He also pleaded guilty
to a charge of obstructing legal process, arising from resisting arrest when
police arrested him during a disturbance at his residence. The district court deferred disposition until
after treatment and issued a furlough for Bellanger to be transported to secure
inpatient treatment at the
Bellanger was discharged
from treatment at
Another resident involved
The district court found that Bellanger had violated probation by failing to complete treatment. The court stated on the record:
Well, here’s the problem, Mr. Bellanger. You’re not just a drunk. You’re violent. And when you drink, you get very violent. And I’ve known you for a fair amount of time. I think you have a lot of potential in your life, but I can’t risk public safety to have you drinking because you get so violent.
Now I deferred the disposition to allow you to do this treatment thinking . . . something might click. And for whatever reason, you didn’t take that seriously enough to not call the staff a name.
So under the circumstances I don’t feel I have a choice but to execute the sentence and that’s what I’m going to do.
. . . .
I don’t like doing this, but I don’t see an alternative based on the history here.
My concern is you’ve continued to get more violent as you get older, and I can’t allow you to do that. You’re going to hurt people, and you need to take stock of your life.
The district court then revoked probation and ordered the execution of Bellanger’s sentence. This appeal followed.
D E C I S I O N
revoking probation, the district court must (1) designate the specific
probation condition or conditions violated; (2) find that the violation was
intentional or inexcusable; and (3) find that the need for confinement
outweighs the policies favoring probation.
State v. Modtland, 695 N.W. 2d
602, 606 (
(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.
Whether a district court
has made the required findings presents a question of law, which this court
reviews de novo. Modtland, 695 N.W.2d at 605.
The Minnesota Rules of Criminal Procedure also require the district
court to make “written findings of fact on all disputed issues” in a contested
Before Modtland, this court interpreted
Bellanger agrees that the
district court made a sufficient finding on the first
argues that even if the district court made the required findings, the evidence
is insufficient to support a finding that his violation was intentional or
inexcusable, or that the need for confinement outweighed the policies favoring
probation. 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.”
Bellanger maintains that
his discharge from treatment is insufficient to support a finding that his
violation was intentional or inexcusable.
He asserts that he did not intend to get kicked out of treatment. But his admitted acts of calling a staff
member “the ‘B’ word” and his statement that he was “out of control” support a
finding that his actions were intentional or inexcusable. In addition, the discharge summary from
Finally, Bellanger argues that the evidence does not support a finding that the need for confinement outweighs the policies favoring probation. Although Bellanger maintains that his drinking does not present a risk to public safety, the district court pointed out that Bellanger had a history of violence associated with alcohol use. One of Ballenger’s previous admitted probation violations involved failure to remain law-abiding with a misdemeanor charge of obstructing legal process. “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.” Austin, 295 N.W. 2d at 250. Even though Bellanger presented evidence of support for continued chemical-dependency treatment in a culturally appropriate program, a representative of the department of corrections presented unrebutted testimony that Bellanger had failed to complete treatment three times, including the aftercare in a culturally appropriate treatment program. Thus, the district court acted within its discretion in revoking probation, and we affirm.