This opinion will be unpublished and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
Filed April 17, 2007
Lyon County District Court
File No. KX-03-554
Lori Swanson, Attorney General, 1800
Richard R. Maes, Lyon County Attorney,
John M. Stuart, State Public Defender, James R. Peterson,
Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*
challenges the district court’s order revoking his probation and executing his
sentence for conspiracy to commit a first-degree controlled substance offense,
arguing that the district court failed to make the
In March 2004, appellant Jeffrey Kortkamp pleaded guilty to conspiracy to commit first-degree controlled substance crimes and received a stayed sentence with probation. In November 2004, appellant’s probation officer filed a report asserting that appellant had violated his probation. Appellant admitted the violations, and following the hearing, the district court ordered out-patient treatment as an additional probation condition. In 2005, appellant received two more violation reports, one of which was later withdrawn, involving his failure to complete the drug treatment that was a condition of his probation. When appellant failed to appear at the hearing regarding his probation violation, the district court ordered him to serve 90 days in jail and reinstated probation.
In December 2005, appellant’s probation officer filed another violation report. At the hearing, which was held on January 20, 2006, appellant admitted, with explanation, the violation of his probation conditions. The district court stated that appellant had done “very little” to show compliance with the rules of his probation and ordered that his probation be revoked and his sentence executed.
Appellant filed a motion to reopen, arguing that he was “under the misimpression that he would be reinstated on probation” if he admitted the violations, that he was “under-represented” at the hearing, and that he wished to present additional information to the court. The district court stayed execution of appellant’s sentence and agreed to hear his motion. Following a hearing, the district court denied appellant’s motion to reopen in March 2006 and concluded that “there is not an appropriate basis to allow [appellant] to withdraw his admission to the probation violations;” appellant’s “conduct in violating the terms and conditions of his probation was intentional or inexcusable;” and “the need for confinement outweighs the policies favoring probation.” This appeal is taken from the district court’s January and March orders.
D E C I S I O N
that the district court abused its discretion by revoking his probation in
January without making findings on the three factors required by State v. Austin, 295 N.W.2d 246, 250-51
(Minn. 1980), and that the district court’s subsequent findings in its March order
may not be considered. 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. State v. Modtland, 695 N.W.2d 602, 605 (
The Minnesota Supreme Court has established a
three-step analysis that must be applied before probation may be revoked.
Appellant argues that our review is limited to the January order and that the subsequent hearing and resulting March order is not properly before us. The crux of appellant’s argument is that State v. Modtland prohibits a district court from conducting a second hearing to reconsider probation revocation. We disagree.
In Modtland, the district court revoked appellant’s probation solely
on the basis of his admission of violations and it then proceeded to a “resentencing
phase.” Modtland, 695 N.W.2d at 604.
Our supreme court, in affirming Austin’s
core holdings, held that “Austin contemplates
an evidentiary hearing in which the district court makes the requisite three
findings before deciding whether to
revoke the defendant’s probation.”
Here, the district court, in
response to appellant’s motion to reopen, conducted a second evidentiary
hearing, made the requisite Austin findings,
and then affirmed its earlier decision to revoke his probation. In doing so, the district court’s March order
satisfied the purpose of the Modtland
requirement that an evidentiary hearing be conducted before the probation
decision is made. We do not read Modtland to prohibit a district court
from addressing the
Appellant further argues
that this matter must be remanded for the district court to properly consider
We turn then to whether the
district court’s March order satisfied the requirements of
Appellant argues that his failure to obtain a chemical-use assessment was not intentional or inexcusable, and that he was involved in the Teen Challenge program to assess and treat his chemical-dependency issues. But appellant had previously been terminated from drug-treatment programs on several occasions for admitted drug use, “lack of progress,” and a lack of amenability to treatment. This pattern supports a finding that the violations are intentional or inexcusable. See In re Welfare of J.K.,641 N.W.2d 617, 621 (Minn. App. 2002) (finding sufficient evidence to support finding that probation violations are intentional or inexcusable where probationer “deliberately and repeatedly refused to comply with probation requirements or take advantage of treatment opportunities”).
Appellant also argues that his failure to pay the fines and restitution was unintentional or excusable because he was only able to work for short periods of time. But even if the failure to pay fines was excusable due to the short time he was able to work, the other violations provide a sufficient basis to revoke his probation and execute his stayed sentence.
in order to revoke probation,
(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.
695 N.W.2d at 607 (quoting
Here, the district court found that “confinement of [appellant] is necessary to protect the public from further criminal activity.” The district court made detailed findings on appellant’s pattern of probation violations and the seriousness of his convictions, and it ultimately found that his “conduct in this matter has demonstrated that he is not currently amenable to probation.” The district court’s findings are factually supported by the record.
Appellant nonetheless argues that confinement is not required because he had not committed any new crimes or endangered public safety and because he was admitted to a new drug-treatment program. But the evidence shows that he had been terminated from two drug-treatment programs for drug use, lack of progress, and not being amenable to treatment, which demonstrates that the goal of probation—rehabilitation—was not being met and that revocation is appropriate. Therefore, the record supports the district court’s finding that the need for confinement outweighs policies favoring probation.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.