This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed May 15, 2007
St. Louis County District Court
File No. K4-00-600405
Lori Swanson, Attorney General, 1800
Melanie S. Ford, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North 5th Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Andrea Barts,
Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order revoking his probation, appellant argues that the district court abused its discretion in revoking probation without making adequate findings and by failing to find that the need for confinement outweighed the policies favoring probation. We affirm.
D E C I S I O N
Levar Patterson argues that the district
court abused its discretion by revoking his probation and executing his sentence. The 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
Austin, before the district court may
revoke probation it must “1) designate the specific condition or conditions
that were violated; 2) find that the violation was intentional or inexcusable;
and 3) find that need for confinement outweighs the policies favoring probation.” 295 N.W.2d at 250. This process insures that the district
court’s decision is not “a reflexive reaction to an accumulation of technical
violations but requires a showing that the offender’s behavior demonstrates
that he or she cannot be counted on to avoid antisocial activity.”
Here, appellant was charged with three counts of possession with intent to sell cocaine and second-degree possession of cocaine. Appellant pleaded guilty to second-degree possession of cocaine. In October 2000, the district court sentenced appellant to the presumptive sentence of 48 months in prison, but departed dispositionally, staying execution of the sentence and placing appellant on probation for five years. Appellant was ordered to serve 18 months in jail; pay a fine and surcharges; and refrain from using alcohol and drugs, committing any related offenses, and having contact with gangs. Appellant was also required to: remain law abiding, report to his probation officer (P.O.), obtain permission from his P.O. before leaving the state, not change residence or employment without approval from his P.O., report any arrests, cooperate and be truthful, comply with additional requirements imposed by his P.O., submit to drug/alcohol testing, comply with institution/program rules, and pay fees as directed.
In 2002, appellant violated his probation by failing to report
to his P.O., missing several probation appointments, and failing to pay his
fine and court costs. The district court
continued the stay of execution and ordered appellant to serve 30 days in jail
or complete 30 days on the sentence-to-service program (STS). In March 2005, appellant’s P.O. recommended
that the district court execute appellant’s sentence after appellant violated
his probation by failing to keep probation appointments; failing to report
address and employment changes; failing to serve 30 days in jail or complete STS;
and failing to pay his fine and court costs.
In April 2006, appellant appeared in court after he returned from
record shows that the district court considered this final
You have been given the opportunities and you have just failed to comply with the responsibilities. And I guess, somewhat reluctantly, I agree that it would be inappropriate to ignore the repeated violations here, particularly in mind of the break you were given on the front end if we did not revoke your probationary status and execute the underlying sentence.
While the district court did not consider whether confinement was necessary to protect the public, appellant’s violations were not the type of violations that would cause the district court to be concerned about the public. The district court considered that the need to confine appellant outweighed his interest in freedom; this was appellant’s second violation, and the district court could not ignore that appellant was not able to follow through with his probationary responsibilities. Additionally, the presumptive sentence was a 48-month commitment; appellant was given a break and he failed, on more than one occasion, to comply with the terms of his probation. The district court did not abuse its discretion in revoking appellant’s probation.