This opinion will be unpublished and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
State of Minnesota,
Greg A. Wallin,
Hennepin County District Court
File No. 02040484
Lori Swanson, Attorney General, 1800
Michael O. Freeman,
John M. Stuart, State Public Defender, Philip Marron,
Assistant Public Defender,
Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.
challenges the district court’s revocation of his probation, arguing that the
district court failed to make adequate findings under the third
After police discovered child pornography on appellant Greg Wallin’s computer hard drive, appellant pleaded guilty to possession of pornographic work involving a minor, in violation of Minn. Stat. § 617.247, subd. 4(a) (2002). The district court stayed imposition of appellant’s sentence and placed him on probation for five years, subject to various conditions. Pursuant to these conditions, appellant was required to: (1) “serve 90 days in the workhouse [or] . . . on electronic home monitoring”; (2) refrain from accessing the Internet; (3) have “[n]o unsupervised contact with minors under the age of sixteen”; (4) “[c]ooperate with mental health and sex-offender assessment[s]”; and (5) “register as a sex offender.”
In August 2003, the Hennepin County Corrections Department filed a probation-violation report with the district court because appellant “[f]ail[ed] to co-operate with Sex Offender Treatment” and “refus[ed] to participate in Sex Offender programming.” In October 2005, the department filed a second probation-violation report because appellant “[f]ail[ed] to Complete Sex Offender Treatment” and “was terminated from therapy . . . for inappropriate behavior and a lack of progress.” Following the filing of each report, the district court held a probation-violation hearing, warned appellant that he needed to cooperate to avoid revocation, and reinstated appellant’s probation.
In June 2006, the department filed a third probation-violation report, asserting that appellant violated the terms of his probation by “accessing the Internet at the Minneapolis Public Library.” The district court held a hearing on the third report, revoked appellant’s probation, and executed appellant’s sentence. The district court made no written findings. This appeal follows.
first issue is whether the district court made adequate findings to support
revocation of appellant’s probation.
Whether the district court has made adequate findings before revoking
probation is a question of law, which we review de novo. State
v. Modtland, 695 N.W.2d 602, 605 (
revoking a defendant’s probation, the district court must engage in a
three-step analysis. State v.
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.”
district court must make these findings on the record and “should not assume
that [it] ha[s] satisfied
concedes that the district court made adequate findings under the first and
Following the state’s presentation of evidence at the revocation hearing, and after finding that appellant violated a condition of his probation by intentionally accessing the Internet, the district court considered whether reinstatement of probation was proper and concluded that it was not:
I also find that you are unamenable to probation. . . . [T]his is the third time that you’ve been back here. . . . I have a transcript of the first probation revocation on August 26th of 2003 when you were here because you failed to complete treatment and I reinstated probation and specifically told you that you need to cooperate with . . . your probation officer; [and that] you need to cooperate with the sex offender treatment program . . . . You were here in 2005 for failure to complete sex offender treatment because you were terminated from therapy for inappropriate behavior and lack of progress. . . . Nothing has changed other than the fact that you are trying to keep yourself out of prison. At this point that does not make you amenable to probation. . . . I have carefully considered all of this. I have looked at all of these exhibits and I cannot find that you are amenable to probation and it appears that you are continuing to fail to accept responsibility for your actions.
deciding to revoke probation, the district court relied heavily on appellant’s
record of probation violations, emphasizing that appellant’s failure to cooperate
with sex-offender treatment and his subsequent expulsion from a treatment
program resulted in two probation-violation reports. And the district court also considered its
previous decisions to reinstate probation, its previous warning to appellant that
its patience was running out, and appellant’s failure to cooperate with the
conditions of his probation notwithstanding the district court’s leniency. These findings bear directly on the
likelihood of appellant’s successful rehabilitation if he were continued on
probation and on whether confinement was necessary to protect the public from
further criminal activity. These are
factors regularly and appropriately considered under the third
recognize that Austin and Modtland hold district courts to a high
standard when considering whether revocation of probation is warranted. And we agree that district courts’ careful
and thorough consideration of the three
the district court’s findings are not model findings on the third
Because the district court’s findings communicate its determination that the need for confinement outweighed policies favoring probation, and that determination is supported by a reasonable substantive explanation on the record, we conclude that the district court’s findings are adequate to satisfy the requirements of Austin and Modtland.
The second issue is an extension of the first. Having found that the district court adequately explained the decision to revoke probation, we now consider whether the district court abused its discretion in concluding that, under the third Austin factor, the facts support the conclusion that the need to confine appellant outweighed policies favoring reinstatement of his probation.
courts have “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.” Modtland,
695 N.W.2d at 605 (quotation omitted). In
making the third
claims that the record clearly shows that the need for confinement in this case
did not outweigh the policies favoring probation. The record includes evidence of appellant’s
prior failure to cooperate with sex-offender treatment, appellant’s ejection
from a treatment program on account of a lack of progress, appellant’s
violation of probation by accessing the Internet, and appellant’s probation
officer’s opinion that appellant is not amenable to treatment.
Appellant further argues that the need for confinement did not outweigh policies favoring probation because appellant had served more than three years of his five-year probationary term at the time of the third violation, because appellant’s probation violation was not serious enough to justify revocation, and because appellant testified that he would cooperate fully with treatment and take recommended medication.
First, the fact that appellant had been on probation for three years at the time of the violation, standing alone, is not determinative of whether the need for confinement outweighs policies favoring probation. Appellant failed to comply with the terms of probation on two prior occasions. Additionally, appellant’s use of the Internet to look at sexually provocative pictures is not as insignificant as appellant suggests. The requirement that appellant refrain from accessing the Internet is meant to provide a bright-line and easily enforceable rule to prevent appellant’s access to child pornography. To give little weight to appellant’s violation because the state did not prove appellant actually accessed something as offensive as child pornography weakens the effectiveness of the bright-line rule that is justified by the difficulty inherent in monitoring appellant’s Internet activity. Appellant’s repeated failure to cooperate with sex-offender treatment also makes his Internet usage more serious. Finally, the credibility of appellant’s testimony that he would fully cooperate with sex-offender treatment is a determination best left to the district court. Here, the district court found that appellant’s testimony was not credible, and we defer to that determination.
Because the district court is given broad discretion to evaluate whether the need for confinement outweighs the policies favoring probation and because there is sufficient evidence to support the district court’s determination, we conclude that the district court did not abuse its discretion in revoking appellant’s probation.
 Minn. R. Crim. P. 27.04, subd. 3(4), describes the record required to be made at a probation-revocation hearing and provides that “in any contested hearing the court shall make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court’s reasons for its determination.” This language notwithstanding, rule 27.04’s “‘written findings’ requirement is satisfied [if] the district court stat[es] its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review.” Modtland, 695 N.W.2d at 608 n.4 (quoting Minn. R. Crim. P. 27.04, subd. 3(4)).