This opinion will be unpublished and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
A06-2073


State of Minnesota,
Respondent,

vs.

Alan Lee Nordin,
Appellant.

Filed December 24, 2007

Affirmed

Wright, Judge

 

Anoka County District Court

File No. K3-04-20

 

John Stuart, State Public Defender, Andrea Barts, Assistant State Public Defender, 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


Robert M.A. Johnson, Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN† 55303; and


Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN† 55487 (for respondent)

 

 

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

U N P U B L I S H E D†† O P I N I O N

WRIGHT, Judge

††††††††††† Appellant challenges on two grounds the district courtís decision to revoke his probation. †First, he argues that the district court failed to make adequate findings as to the third factor for revocation set forth in State v. Austin, 295 N.W.2d 246 (Minn. 1980).† Alternatively, he contends that, even if the findings for the third Austin factor are adequate, the district court abused its discretion by finding that the need for confinement outweighed policies favoring probation.† We affirm.

FACTS

In January 2005, appellant Allan Nordin pleaded guilty to first-degree driving while impaired (test refusal), a felony violation of Minn. Stat. ßß 169A.20, subds. 2, 3, 169A.24, subds. 1(1), 2 (2002).† At the sentencing that followed, the district court observed that Nordin is a particularly risky candidate for probation because his extensive history of alcohol-related driving offenses enhanced the possibility that Nordin would continue to drive while impaired, which could result in a fatal accident.† Notwithstanding this concern, the district court granted Nordin a dispositional departure from the presumptive guidelines sentence of 54 monthsí imprisonment by staying the execution of the sentence and placing Nordin on probation.† The conditions of probation required Nordin to remain law-abiding, avoid any same or similar offenses, refrain from using controlled substances or alcohol, and submit to random urinalysis testing.† The district court warned Nordin that it would not hesitate to revoke his probation and execute the sentence if Nordin violated the conditions of his probation.

††††††††††† In September 2005, Nordin refused to submit to the random urinalysis testing required under his probation.† When Nordin finally complied, his test results were positive for cocaine and THC, indicating marijuana use.† Nordinís probation officer notified the district court of the probation violation.† After a probation-violation hearing on March 8, 2006, the district court declined to revoke Nordinís probation.† But as a consequence of the probation violation, Nordin was ordered to serve 365 days in jail and to complete inpatient treatment immediately upon his release from custody.

††††††††††† Nordin underwent inpatient treatment at the Meridian Behavioral Health Network facility at Cedar Ridge (Cedar Ridge).† During his intake interviews, Nordin lied to the staff about when he last used mood-altering substances, misrepresented his criminal history (claiming he had four DWI convictions rather than 11), and falsely reported that he owned his own home and had custody of his daughter.† In reliance on these misrepresentations, the staff considered releasing Nordin early without requiring him to reside in a halfway house.† When Nordinís probation officer advised the Cedar Ridge staff that Nordin had been dishonest, staff members confronted Nordin.† They then began exploring options for placing Nordin in a halfway house, despite Nordinís stated dissatisfaction with such a placement.† When Nordinís manipulation made several attempts at halfway-house placement unsuccessful, the Cedar Ridge staff discharged Nordin directly to police officers, who arrested him.† As a result, Nordin did not complete the treatment program.

††††††††††† On August 2, 2006, the district court held a second probation-violation hearing based on Nordinís failure to complete the inpatient-treatment program.† Nordin and his probation officer testified at the hearing.† The district court found clear and convincing evidence that Nordin had violated his probation by failing to complete the court-ordered treatment program and that he acted intentionally, willfully, and without justification in doing so.† The district court also found that Nordin had twice violated his probation, and, therefore, it was necessary to send Nordin to prison to protect society and to ensure that Nordin would get the treatment he needed.† The district court revoked Nordinís probation and executed the sentence.† This appeal followed.

D E C I S I O N

I.

††††††††††† 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 (Minn. 2005).†

††††††††††† Before deciding to revoke a defendantís probation, the district court must satisfy the following three requirements: (1) designate the specific condition or conditions that the defendant violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need to confine the defendant outweighs the policies favoring probation.† State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). ††The mere recital of the second and third Austin factors with general, nonspecific reasons for probation revocation is inadequate to satisfy the requirements of Austin.† Modtland, 695 N.W.2d at 608.† In addition to procedural conformity, we also review the district courtís findings to determine whether they include an explanation of the substantive reasons for revocation and the evidence relied on in reaching its probation-revocation decision.† Id. (emphasizing that district court ďmust seek to conveyĒ substantive reasons when making Austin findings).

††††††††††† Nordin concedes that the district court identified the specific probation violation and found that the violation was intentional or inexcusable, thereby satisfying the first two Austin factors.† But he challenges the sufficiency of the district courtís findings on the third Austin factor, which, as reiterated by Modtland, requires the district court to balance the probationerís interest in freedom against the stateís interests in ensuring the probationerís rehabilitation and in protecting the public.† Id. at 606 (citing Austin, 295 N.W.2d at 250).† Thus, the specific issue before us is whether the district court applied the required balancing test under Austin.

††††††††††† The Austin court endorsed the American Bar Association Standards for Criminal Justice regarding probation as a framework for analyzing the third factor.† Austin, 295 N.W.2d at 251 (citing Standards for Criminal Justice, Probation ß 5.1(a) (Approved Draft 1970)).† The ABA Standards disapprove of imprisonment following revocation unless confinement is necessary to protect the public from further criminal activity by the offender, the offender is in need of correctional treatment that can be most effectively provided if the offender is confined, or it would unduly depreciate the seriousness of the violation if probation were not revoked.† Id.† Thus, imprisonment may be justified if only one of these factors is met.† Id.

††††††††††† Here, the district courtís analysis of the criteria posed by the ABA Standards demonstrates that the district courtís findings satisfied the third Austin factor.† The district court addressed the necessity of confinement in the interest of public safety by repeating the concerns it had articulated at sentencing.† The district court characterized Nordin as a high-risk offender because Nordin has a long history of alcohol abuse, which includes an extensive impaired-driving record, and because he committed two probation violations within a short period after the commencement of the instant probation term.† The district court found Nordin to be ďa danger to the community at largeĒ because he is ďin the category of some of the most risky peopleĒ on probation.

††††††††††† The district court also found that Nordin is in need of chemical-dependency treatment, which can be provided most effectively if he is confined.† In reaching this determination, the district court emphasized the numerous ways in which Nordin undermined the effectiveness of his treatment when he was not incarcerated.† The district court found that Nordin had attempted to manipulate his treatment providers at Cedar Ridge and that Nordin believed he was better at directing his own treatment programming than the professionals to whom the district court had sent Nordin for that purpose.† Because of Nordinís lack of insight, the district court agreed with Nordinís probation officer that structured prison programs offer the only setting in which Nordin can be treated for his chemical dependency.† Thus, the district court considered the specific nature of Nordinís offense and his violations when it reached the conclusion that the need for confinement outweighed the policies favoring probation.†

††††††††††† When revoking Nordinís probation, the district court acknowledged its reluctance but found that, given the risk to the public presented by Nordinís offense in conjunction with his substance-abuse-related probation violations, execution of Nordinís sentence was appropriate.† Taken as a whole, the district courtís findings regarding Nordinís threat to public safety and his treatment needs clearly demonstrate that, when it decided to revoke Nordinís probation, the district court balanced the competing interests of Nordinís freedom and those interests involving public safety and his need for treatment.† We therefore reject Nordinís contention that the district court did not adequately address the third Austin factor.

II.

††††††††††† We next consider Nordinís alternative claim that the district court abused its discretion by determining that the need for confinement outweighed the policies favoring probation.† The decision to revoke probation rests within the district courtís broad discretion and will not be disturbed absent a clear abuse of that discretion.† Modtland, 695 N.W.2d at 605.

††††††††††† With regard to the third Austin factor, a district court must ďbear in mind that policy considerations may require that probation not be revoked even though the facts may allow it.Ē† Id. at 606 (quotation omitted).† In short, revocation should be a last resort, used only when treatment has failed and the offender cannot be counted on to avoid antisocial activity.† Id. at 606-07; Austin, 295 N.W.2d at 250-51.†

††††††††††† The district courtís findings on the merits of revoking Nordinís probation demonstrate that its decision to do so was not an abuse of discretion.† Nordin continued to use mood-altering substances and frustrated the efforts of healthcare providers to administer effective chemical-dependency treatment.†

††††††††††† The circumstances of Nordinís failure to complete the court-ordered treatment demonstrate Nordinís unwillingness to address the specific behaviorósubstance abuseó that makes him a risk to public safety.† Thus, the district courtís findings that Nordin posed a risk to society and that his treatment needs could be adequately met only in prison are well-founded.

††††††††††† Nordinís argument that his ďsingle probation violation for failure to complete treatment was relatively minor in comparison to the long 54-month sentence that the court ultimately executedĒ is unavailing.† When determining whether to revoke probation, the district courtís consideration need not be limited to Nordinís failure to complete the court-ordered treatment.† To the contrary, Austin and Modtland direct the district court to engage in a broader analysis.† See Modtland, 695 N.W.2d at 607 (citing Austin, 295 N.W.2d at 250) (speaking generally of need to serve ďthe probationerís and the publicís needsĒ).† Furthermore, Nordinís failure to complete chemical-dependency treatment was his second probation violation within the first quarter of his probationary term, and his criminal history includes 11 prior alcohol-related driving offenses.

††††††††††† On this record, the district courtís decision to revoke Nordinís probation and execute the presumptive guidelines sentence of 54 monthsí imprisonment was a sound exercise of its discretion.

††††††††††† Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.