This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,


Samantha Marie Evans,


Filed May 1, 2007


Wright, Judge


Pine County District Court

File No. K6-03-989



Timothy Mulrooney, Jane E. Rydholm, Special Assistant State Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN  55063 (for respondent)



            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


Appellant challenges the district court’s order requiring her to serve 45 days in jail as a sanction for her probation violations.  Although appellant does not dispute the violations, she argues that they were not intentional or inexcusable and that the need for confinement does not outweigh the policies favoring probation.  We affirm.


            Appellant Samantha Evans pleaded guilty to refusing to submit to a chemical test for intoxication, in violation of Minn. Stat. §§ 169A.20, subd. 2 (2000), .25 (Supp. 2001).  The district court imposed a 180-day jail sentence, stayed execution, and placed Evans on probation.  The conditions of her probation required her to serve 30 days in jail, comply with probation rules, refrain from using alcohol and drugs, submit to random alcohol and drug tests, pay fines and fees, and attend a victim-impact panel.

            On August 19, 2005, a probation-violation report was filed, alleging that Evans failed to submit to a drug-and-alcohol test, pay her fines and fees, complete a cognitive‑skills course, and report to probation as directed.  At the conclusion of a probation‑violation hearing, the district court found that Evans had committed the alleged probation violations, ordered her to serve 45 days in jail, and continued her probation on the same terms and conditions.  The district court granted Evans’s motion for release pending appeal, and this appeal followed. [1]


            Evans argues that the record does not establish that her violations were intentional or inexcusable.  And she maintains that the need for confinement does not outweigh the policies favoring probation.  Therefore, she asserts, revocation of her probation was an abuse of discretion.  Her arguments are founded on State v. Austin, which holds that a district court must satisfy the following three requirements before revoking probation and executing a stayed sentence: (1) designate the specific probation condition that the probationer has violated; (2) find that the violation is inexcusable or intentional; and (3) find that the need for confinement outweighs the policies favoring probation.  295 N.W.2d 246, 250 (Minn. 1980).

            Evans’s argument is based on a false premise, namely, that the district court revoked her probation.  To the contrary, the district court imposed an intermediate sanction of 45 days in jail and continued Evans’s probation on the previously imposed terms and conditions.[2]  The district court’s actions comply with Minn. Stat. § 609.14, subd. 3(2) (2004), which provides that, after finding that a probationer committed the probation violations alleged in the probation-violation report, a district court may continue the stay of execution of the probationer’s sentence and order intermediate sanctions in accordance with Minn. Stat. § 609.135 (2004).  Under section 609.135, the district court may “place the defendant on probation . . . on the terms the [district] court prescribes, including intermediate sanctions when practicable.”  Minn. Stat. § 609.135, subd. 1(a)(2).  This is precisely the course of action taken by the district court when it continued Evans’s probation on the existing terms and conditions along with an intermediate sanction of 45 days in jail.  These statutory provisions do not require a district court to determine that the second and third Austin factors are satisfied before imposing an intermediate sanction.  See Minn. Stat. § 609.14, subd. 3 (2004) (stating that district court may impose intermediate sanctions once it finds that alleged violations occurred).  Nor does Austin’s holding extend to circumstances other than probation revocation followed by an executed sentence.  295 N.W.2d at 350; see also State v. Cottew, 728 N.W.2d 268, 274 (Minn. App. 2007) (holding that district court need not make Austin findings before imposing intermediate sanction of confinement). 

Indeed, the district court determined that, although the second Austin factor was satisfied, the third was not.  It found that, when taken together, the violations were inexcusable and, given the number of violations, they were intentional.  But regarding the third Austin factor, the district court found that the need for confinement did not outweigh the policies favoring probation because difficult circumstances, including Evans’s indigency and mental illness, mitigate the severity of her violations.  Based on these findings, which are supported by the record, the district court determined that the imposition of an intermediate sanction, rather than probation revocation, would best serve the intended rehabilitative purpose.  See Austin, 295 N.W.2d at 250 (holding that “purpose of probation is rehabilitation” and cautioning that probation revocation be employed as last resort after rehabilitation efforts have failed).  The careful analysis of the circumstances evident in the district court’s findings demonstrates the district court’s sound exercise of discretion.


[1] Respondent State of Minnesota did not file a brief.  We, therefore, decide this appeal on its merits, as required by Minn. R. Civ. App. P. 142.03.

[2] “Intermediate sanctions” include, but are not limited to, incarceration in a local jail.  Minn. Stat. § 609.135, subd. 1(b) (2004).