This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



John Alan Lee,


Filed March 2, 1999


Huspeni, Judge[*]

Dakota County District Court

File No. K1-95-182

Michael A. Hatch, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant Dakota County Attorney, 1560 West Highway 55, Hastings, MN 55033 (attorneys for respondent)

John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (attorneys for appellant)

Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.



On appeal from an order revoking his probation, John Alan Lee asserts that the district court abused its discretion because (1) his violations were unintentional and excusable; and (2) public policy favors continued probation to encourage his recent responsible behavior. We affirm.


In October 1995, appellant John Alan Lee pleaded guilty to fourth-degree criminal sexual conduct. He received a stay of imposition and was placed on probation for five years. The conditions of his probation required him to: (1) serve 75 days in jail; (2) complete chemical dependency and psychological evaluations; (3) follow the recommendations of those evaluations and of any treatment programs; (4) abstain from alcohol and illegal drug use; (5) follow probation department rules and regulations; (6) remain law-abiding; and (7) refrain from contact with the victim.

Following chemical dependency and psychological evaluations, appellant completed an in-house chemical dependency treatment program, followed by three weeks in a halfway house and 75 days in jail. In July 1996, he began the intake process for Project Pathfinder, a sex-offender treatment program. He completed the intake process in nine months; the program typically takes six weeks. He then began group and individual therapy, but he was suspended several times during treatment for noncompliance with program expectations, sporadic attendance, and nonpayment of fees. During this time, he also missed several scheduled meetings with his probation officer and admitted to three drinking relapses.

On December 2, 1997, appellant met with his probation officer, his interim probation officer, and his therapist in the sex-offender program to discuss his failure to meet treatment expectations. His probation officer warned him that he had one last chance to show her that he was serious. If he did not complete sex-offender treatment, his prison sentence would be executed.

On January 29, 1998, Lee admitted to his interim probation officer that he was drinking daily and using cocaine. She told him that, as long as he stayed in treatment and followed all recommendations relating to chemical dependency treatment, she would recommend that the court take no further action on his violations. She instructed him to enter the detox center that day. Four days later, he entered the detox facility, highly intoxicated. From the detox center, he went directly to an in-patient chemical dependency treatment center for 21 days. As recommended, the court ordered that no further action be taken.

In February 1998, appellant told his therapist that he would not be attending sessions at Project Pathfinder, because he had to attend alcohol treatment. He never returned to the sex-offender program. Between February 26 and May 1998, he entered and was involuntarily discharged from two halfway houses for chemical dependency treatment, for noncompliance with house rules, and for fighting with staff and residents.

In May 1998, appellant's temporary probation officer saw him in a restaurant, tipping a bottle of beer toward his mouth. He lowered the bottle when he saw her. He told her that he had just been discharged from the second halfway house. They discussed the seriousness of his situation. Although the temporary probation officer suggested ameliorative measures appellant could take prior to a probation violation hearing, she did not promise to recommend against revocation. She then filed a report, alleging that appellant had violated probation by failing to (1) abstain from alcohol and illegal drug use; (2) follow treatment recommendations of his chemical assessment; and (3) complete sex-offender treatment.

By the time of the hearing, appellant had started attending AA meetings, obtained employment, contacted Project Pathfinder regarding his return to the sex-offender program, and paid his outstanding account. The district court revoked his probation.


The district court has broad discretion in determining whether sufficient evidence exists to revoke probation. State v. Austin, 295 N.W.2d 246, 249 (Minn. 1980). The reviewing court will reverse only for clear abuse of that discretion. Id. at 250. Before revoking probation, the district court must (1) designate the specific condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. Because the purpose of probation is rehabilitative, revocation should be used only when probation has failed. Id. The court must balance the probationer's interest in freedom with the state's interest in ensuring the defendant's rehabilitation and the public's safety. Id.

Appellant concedes he violated the terms of his probation. He claims, however, that the second prong of the Austin test is not met, because his violations were unintentional and excusable due to his drug and alcohol addictions. He argues that he was discharged from the sex-offender program because of his financial restraints and attendance problems, both of which are symptoms of his chemical addiction. He also contends that his alcohol and drug relapses and his failure to adjust to chemical treatment programs must be evaluated in light of his addictions, which involve habitual, rather than intentional, behavior. We disagree.

Appellant was not discharged from Project Pathfinder simply because he was unable to pay his bill or attend sessions. He also failed to meet treatment goals after the orientation stage. Further, he was discharged from the chemical dependency halfway houses because he fought with the residents and staff and failed to follow the house rules. Because he was not drinking at the time, his alcoholism and drug use addictions appear unrelated to his discharge. He also missed appointments with his probation officers, disregarded his probation officers' instructions and warnings, and failed to follow through on AA attendance until recently. Appellant's conduct supports a finding the violations are inexcusable.

Appellant also claims that the third prong of the Austin test is not met because the policy behind probation favors continued probation to encourage recent responsible behavior. He argues that his violations were technical and noncriminal and the district court abused its discretion by disregarding his clear criminal record during his entire probation. We find this argument equally unpersuasive. Austin permits revocation of probation "as a last resort when treatment failed." Id. The record indicates that appellant was unable to refrain from chemical use, despite completing two chemical dependency treatment programs. After nearly three years of probation, he has failed to complete sex-offender treatment. These facts show he was offered treatment but failed to demonstrate a commitment to rehabilitation. The district court's determination that confinement was appropriate because appellant could not be relied on to complete treatment was supported by sufficient evidence. The decision to revoke probation was not, therefore, an abuse of discretion.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.