This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-33

 

State of Minnesota,

Respondent,

 

vs.

 

Candice Austin,

Appellant.

 

Filed November 20, 2007

Affirmed

Shumaker, Judge

 

Dakota County District Court

File No. K1-03-2870

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Government Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D†† O P I N I O N

SHUMAKER, Judge

††††††††††† Appellant challenges the district courtís order revoking her probation and executing her 111-month sentence.† Because appellant failed to show that mitigating circumstances excused her admitted probation violations, and because evidence established that the need to confine appellant outweighed polices favoring probation, the district court did not abuse its discretion in revoking appellantís probation.† We affirm.

FACTS

††††††††††† After appellant Candice Austin pleaded guilty to a second-degree controlled-substance crime in 2003, the district court imposed a stayed sentence of 111 months and placed her on probation for ten years.† Among the conditions of probation were the requirements that Austin serve 365 days in jail, abstain from illegal drugs, submit to random drug testing, follow the recommendations of a chemical-dependency evaluation, and report to her probation officer.

††††††††††† Within two months after her release from jail in 2004, Austin had failed three times to meet with her probation officer and had tested positive for cocaine. †She then agreed with her probation officer that she should enter an inpatient treatment program by July 15, 2004. †She failed to do so, and she failed to contact her probation officer for three months after her positive drug test and eventually was arrested for violating her probation.

††††††††††† At probation-revocation hearings in January and February 2005, Austin admitted violating her probation by failing to enter inpatient treatment, failing to abstain from illegal drugs, and failing to keep in contact with her probation officer.† Austin explained, in mitigation of her violations, that she had remained sober after her release from jail and that she tried to find employment but her progress was derailed by homelessness and rape.

††††††††††† The district court rejected Austinís excuses, revoked her probation, and ordered the execution of her sentence.† Austin appealed, and this court reversed and remanded for additional findings.† State v. Austin, No. K1-03-2860 (Minn. App. Feb. 16, 2006) (order op.).† On remand, the district court again revoked Austinís probation and executed her 111-month sentence.† Contending that the court abused its discretion, Austin brought this second appeal.

D E C I S I O N

††††††††††† A district court ďhas 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.Ē† State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (finding no abuse of discretion where there was sufficient evidence that appellant intentionally disobeyed his probation officerís instructions).† Before revoking a defendantís probation, a district court ďmust 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.Ē† Id. at 250.†

A district court must evaluate all three Austin factors, even if it finds that the first and second are satisfied.† See State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (reaffirming ďAustinís core holding that district courts must make . . . three findings on the record before probation is revokedĒ).† Consideration of the third factor focuses a district courtís attention on the purpose of probation, which is rehabilitation, and on the policy that ďrevocation should be used only as a last resort when treatment has failed.Ē† Id. (quoting Austin, 295 N.W.2d at 250).† Accordingly, if a district court finds either (1) that confinement is necessary to protect the public, or (2) that confinement is the most effective way to provide the defendant with treatment, or (3) that not revoking probation would unduly depreciate the seriousness of the violation, then the defendantís probation revocation is properly supported.† Id. at 607 (citing Austin, 295 N.W.2d at 251).

††††††††††† As to the first and second Austin factors, Austin admitted violating specific conditions of her probation, but she contends that the violations were not intentional or inexcusable considering her circumstances. †The district court found otherwise, and that finding is supported by the record.

††††††††††† Austin testified that, upon her release from jail, she at first lived with her mother and then became homeless in the middle of June 2004.† Austin explained that her homelessness caused her to relapse into drug use and prevented her from contacting her probation officer.† Although the record is not entirely clear, there is evidence that Austinís relapse and failure to contact her probation officer occurred before her homelessness. Furthermore, homelessness does not justify a failure to contact a probation officer and does not explain why such contact could not occur.† And relapse into drug usage, a probation violation in itself, is not justified by homelessness, nor does it provide an excuse for failing to contact a probation officer.† The reasonable inference from these circumstances is that Austinís violations were intentional or inexcusable.

††††††††††† Austin also offers as an excuse for failing to enter inpatient treatment that she was raped between the time of her failed drug test and her entry date. †She contends that she became fearful and confused so that she missed her entry date and began a downward spiral into full-blown drug use.† The record is unclear as to when the rape occurred, but there is evidence that Austinís relapse occurred before the rape.† This is shown by the fact that she tested positive for cocaine and then, according to her testimony, she was raped and did not enter treatment.† The district court ostensibly did not find Austin to be credible on the contention that the rape triggered her relapse.

††††††††††† Thus, the court made adequate findings on the first two Austin factors, and those findings are supported by the record.

††††††††††† The court also found that the need for confinement outweighed the policies favoring probation.† The court observed that Austinís presumptive sentence was 111 months executed, based on her criminal history, and that she had been given opportunities to obtain drug treatment and to succeed on probation.† The court found that, despite the opportunities for probation, Austin continued to use drugs, refused inpatient treatment, and ignored the requirement that she maintain contact with her probation officer.† Because Austin intentionally and inexcusably rejected the core conditions of her probation, the court concluded that the need for confinement outweighed the policies favoring probation.† The record supports the courtís determination.

††††††††††† Because the court made proper findings, based on the record, as to all three requisite Austin factors, the court did not abuse its discretion when it revoked Austinís probation and ordered the execution of her sentence.

††††††††††† Affirmed.