This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Timothy Allen Mitchell,


Filed March 10, 1998

Affirmed as modified

Crippen, Judge

Washington County District Court

File No. K5942977

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard M. Arney, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14900 61st Street North, Stillwater, MN 55082 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.



Appellant disputes execution of his 1995 prison sentence, contending that (a) the passing of one year from the time he violated a condition of his probation destroyed the cause for revocation and (b) the intemperate remarks of the trial court in explaining its basis for revocation demonstrated judicial action without consideration of appropriate legal standards. He also argues that the trial court erred when it sentenced him to consecutive 38-month sentences. Unable to collectively determine that the trial court clearly abused its discretion, we affirm the revocation. We modify the trial court's guideline sentencing calculation.


In 1994, when driving while intoxicated, appellant collided with another vehicle, causing substantial injuries to two occupants of the other car. Appellant pleaded guilty to one count of criminal vehicular operation resulting in great bodily harm and one count of criminal vehicular operation resulting in substantial bodily harm. The court stayed appellant's 38-month sentence, placing him on probation for five years, provided that, among other conditions, appellant abstain from using alcohol. In July 1996, appellant was convicted of a misdemeanor offense of alcohol intoxication. During the subsequent year, appellant evidently maintained sobriety and fulfilled other conditions, including a requirement of 200 hours of community work service. Based on appellant's progress during the first half of that year, his probation officer abandoned pursuit of revocation proceedings, evidently with the trial court's consent. One year after appellant's violation, on the initiative of the county attorney, a revocation hearing was conducted. The trial court revoked the stay of execution and ordered appellant to serve the remainder of his sentence.


1. Revocation

We will not reverse the trial court's revocation of probation in the absence of clear abuse of the court's broad discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Prior to revoking probation, the trial court must "(1) designate the specific condition * * * violated; (2) find that the violation was intentional or inexcusable; and (3) find that need for confinement outweighs the policies favoring probation." Id. at 250. A court should not revoke probation unless:

(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.

Id. at 251 (citation omitted).

Appellant contends that not only did the trial court fail to undertake analysis of the Austin factors, but the record does not permit findings on any of those factors. This is not true. The court in its comments noted (a) its responsibility to the public and (b) its concern that failing to hold appellant accountable would represent a failure of the court to protect members of the public from appellant's dangerous behavior. These comments make it evident that the trial court was motivated by the need to protect the public from the kind of wrongdoing appellant had previously perpetrated. Moreover, the trial court emphasized that appellant's offense, albeit a year earlier, represented dishonor of an important sentencing commitment; thus the court demonstrated its concern for unduly depreciating the seriousness of appellant's crime.

Appellant emphasizes (a) that his offense did not involve driving; (b) that it did not demonstrate a failure in his effort to maintain sobriety; (c) that the passing of a year eliminated cause to execute his sentence; and (d) that earlier abandonment of revocation proceedings demonstrated that revocation was not needed to show due regard for the seriousness of the original offense. These are valid considerations. We are especially troubled about the occurrence of a revocation one year after the reported violation. Notwithstanding these concerns, it was the prerogative of the trial court to consider other lawful factors. We are unable to reach the collective judgment that the trial court clearly abused its discretion. Absent such a clear abuse, we are not at liberty to substitute our judgment for the trial court determination.

Appellant is rightfully concerned about the trial court's explanatory comments. Appellant's concern is premised on the court's (a) expression of intolerance for any consumption of alcohol; (b) slanderous observations about highly paid athletes, accompanying a conclusion that alcohol was even more hurtful to society; (c) self-professed desire to be as tough as God of the Old Testament; and (d) vulgar rejection of appellant's assertion that he would not drink and drive again.

As appellant contends, none of the trial court's observations represented the careful application of the legal standards demanded by Austin. The trial court permitted the appearance of acting on emotion and dispensing with the rule of the law. But the error of the court does not displace the rationale it announced for revoking appellant's probation, reasons that comply with the mandate of Austin. Furthermore, the trial court's inflammatory remarks represent a more plausible judicial response when viewed in light of the seriousness of appellant's 1994 crime and the continuing threat appellant is to himself and others if he fails to completely correct the behavior that led to his original offense.

2. Sentencing

Appellant correctly asserts that the trial court misapplied the Minnesota Sentencing Guidelines in sentencing him to consecutive 38-month sentences.[1] The second count of appellant's sentence is controlled by Section II.F.3 of the sentencing guidelines. That section provides that when sentencing consecutively a zero criminal history score should be used for computation of the duration of the less severe offense(s). Minn. Sent. Guidelines II.F.3. Based on this provision, the sentence for the second conviction should have been 12 months and one day, not 15 months as determined by the trial court. Minn. Sent. Guidelines IV-V (sentencing guidelines grid and offense severity table). Accordingly, we reduce appellant's sentence on the second charge to 12 months and one day. See State v. Butterfield, 555 N.W.2d 526, 533 (Minn. App. 1996) (holding remand unnecessary where it is clear trial court intended to impose maximum sentence under guidelines), review denied (Minn. Dec. 17, 1996).

Affirmed as modified.

[1] Appellant was given a criminal history score of 2 and a severity level of V for the more severe offense, which would result in a 27-month sentence. Minn. Sent. Guidelines IV-V. We do not address the propriety of the 23-month sentence, recognizing that while the court may correct a sentence not authorized by law or modify a sentence during either a stay of imposition or stay of execution of sentence, the court may not increase the period of confinement. Minn. R. Crim. P. 27.03, subd. 9.