may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeffery Thomas Elling,
Filed May 18, 1999
Anoka County District Court
File Nos. K1-93-14114
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)
Jennifer E. Speas, 155 Fifth Avenue, Suite 800, Minneapolis, MN 55401 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.[*]
Jeffery Thomas Elling appeals the district court's revocation of his probation, arguing that the court failed to make sufficient findings to support the revocation. Because the district court's findings are sufficient to permit meaningful review and are supported by the record, we affirm.
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 discretion." State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Before probation can be revoked, the district court must "(1) designate the specific condition or conditions [of probation] 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. at 250. If the district court fails to make express findings, its decision will not be reversed if the record contains sufficient evidence to support the revocation. State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989).
In the present case, Elling concedes that the first two prongs of the Austin test were met, but contends that the district court did not have sufficient evidence to support the finding that the need for confinement outweighs the policies favoring probation. "The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed." Austin, 295 N.W.2d at 250. In determining whether probation revocation is appropriate, the district courts have been cautioned not to revoke as a reflexive reaction to an accumulation of technical violations, but require a showing that the offender can't avoid antisocial behavior. Id. at 251. The district court must balance the probationer's interest in freedom against the state's interest in insuring rehabilitation and the public safety. Id. at 250. The American Bar Association Standards for Criminal Justice, as quoted by the supreme court in Austin, state that revocation is appropriate when "the offender is in need of correctional treatment which can most effectively be provided if he is confined[.]" Austin, 295 N.W.2d at 251 (quoting § 5.1(a) (Approved Draft 1970)).
The district court may look at an individual's prior record in determining whether the individual is amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994). Elling's criminal record shows: (1) six convictions for driving while intoxicated; (2) a disorderly conduct conviction; (3) a conviction for possession of a controlled substance in the third degree; (4) four convictions for driving after cancellations; (5) a felony aggravated robbery conviction; and (6) a felony conviction for possession of burglary tools.
Elling's current revocation is based on a probation violation for his two felony convictions. This violation occurred after the district court gave Elling an opportunity to turn his life around by departing from the guidelines calling for prison and placing him on probation. After Elling committed a second felony while on probation for his first offense, the district court gave him another chance by continuing his probation, believing that Elling was still amenable to probation. Again, Elling violated his probation. The final violation included missing three or four monthly appointments with his probation officer and failing to pay restitution during this same time period. Based on this information, the district court concluded that Elling is no longer amenable to probation. The district court is not required to place an offender on probation indefinitely after repeated probation violations. Under these circumstances, there is sufficient evidence for the district court to find that the need for confinement outweighs the policies favoring probation.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.