C7-00-78

State of Minnesota,

Respondent,

vs.

Allen Randolph Watkins,

Appellant.

Filed July 3, 2000

Affirmed

Willis, Judge

Dakota County District Court

File No. K1982884

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Poritsky, Judge.^*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Allen Randolph Watkins challenges the district court’s order revoking his probation and executing a 48-month prison sentence, arguing that the district court abused its discretion. We affirm.

FACTS

In January 1999, appellant pleaded guilty to second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subd. 1 (1998). The presumptive sentence for the offense is 48 months in prison, but the district court concluded that because appellant was only 18 years old, was a first-time offender, and had possessed only a small amount of a controlled substance, he was amenable to probation. See Minn. Sent. Guidelines IV, V. Thus, the district court stayed imposition of appellant’s sentence and placed him on probation for five years. As conditions of probation, the district court ordered that appellant: (1) serve 30 days in the county jail with credit for five days already served; (2) perform 25 days of public service in the Sentence to Service program; (3) submit to a chemical-dependency evaluation and follow the evaluator’s recommendations; (4) abstain from the use of illegal drugs and submit to random chemical testing; (5) follow the rules of probation; and (6) remain law abiding. The district court told appellant, “If you violate one of those conditions you could go to jail, or you will go to jail for 48 months.”

Appellant was assigned to Dakota County Probation Officer David Mikle, but because appellant lived in Hennepin County, he requested that his probation be transferred to his home county. Hennepin County attempted to supervise appellant until May 1999, when Mikle, based on information provided by Hennepin County, prepared a violation report alleging that appellant missed two appointments, supplied a urine sample that tested positive for marijuana, failed to cooperate with the Sentence to Service program, and failed to undergo a chemical-dependency evaluation. At a June 1999 probation-revocation hearing, appellant admitted to the violations, and the district court ordered him to serve 20 days in jail, with credit for time served, and reinstated the same conditions of probation except for participation in the Sentence to Service program.

Hennepin County refused to continue to supervise appellant, and he was reassigned to Mikle. After appellant was released from jail, he contacted Mikle to schedule an appointment for July 8, 1999. Appellant missed the appointment, and Mikle sent a letter rescheduling the appointment for July 26. Appellant also missed the July 26 appointment.

A second probation-revocation hearing was held in October 1999. Mikle testified that (1) appellant missed two appointments with him in July 1999; (2) the letters he sent to appellant scheduling the appointments were not returned as undeliverable; (3) he had never met appellant and could not supervise him because he could not locate him; (4) appellant met with a Hennepin County probation agent on April 29, 1999, and gave a urine sample that tested positive for marijuana; (5) appellant was twice assigned to attend orientation classes for the Sentence to Service program and failed to attend either class; and (6) appellant was instructed three times to schedule a chemical-dependency evaluation but each time failed to do so. Mikle recommended that the court execute appellant’s sentence.

Appellant testified that (1) he missed the first appointment but called to schedule another appointment; (2) he arranged for transportation to the July 26 appointment but was unable to find Mikle’s office; (3) he called Mikle after missing the July 26 appointment but was unable to reach him because Mikle was on vacation; (4) when he finally reached Mikle, he was told that a violation report had been completed; and (5) he had not yet had a chemical-dependency assessment. He also admitted to the court that if he were to have his urine tested at that moment, it would test positive for drugs.

Finding that appellant had not completed a chemical-dependency evaluation, had continued to use drugs, and had missed all of his appointments, the district court revoked appellant’s probation and executed the presumptive 48-month sentence. This appeal follows.

D E C I S I O N

The district court has broad discretion when deciding whether to revoke probation, and this court will reverse only if there has been a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). To revoke probation, the district court must find that there is clear and convincing evidence that a defendant violated the conditions of his probation. Minn. R. Crim. P. 27.04, subd. 2(1)(b); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). Before probation can be revoked, the district court must (1) specify the condition or conditions that were violated; (2) find that the violation was intentional and inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250. In the absence of these findings, this court may affirm the district court’s revocation of probation provided there is sufficient evidence in the record to support the necessary findings. See id.

Appellant concedes that the district court made the requisite finding that appellant violated specific conditions of his probation but argues that the district court did not find that the violations were intentional or inexcusable or that the need for confinement outweighs the policies favoring probation. But here the evidence in the record supports the necessary findings.

Appellant argues that he did not intentionally miss his appointments with Mikle. Appellant testified that he rescheduled his first missed appointment with Mikle and missed the rescheduled appointment because he could not find Mikle’s office. Appellant further testified that he tried to call Mikle after he missed the July 26 but he could not reach him. But Mikle testified that appellant did not contact him to reschedule the first missed appointment; rather Mikle mailed a missed-appointment letter rescheduling the appointment for July 26. Mikle did not testify that appellant contacted him following the missed appointment on July 26. In a probation-violation proceeding, the district court acts as a fact-finder and weighs the credibility of the witnesses. Moot, 398 N.W.2d at 23. Here, the district court credited the testimony of the probation officer and did not believe appellant’s claimed reasons for missing his appointments with Mikle.

The district court also concluded that appellant had been treated leniently by the court on two occasions but had not done anything that he was ordered to do. The court told appellant

We gave you a break. The judge departed from the guidelines, chose not to follow the law. Chose not to send you to prison. And even if you didn’t get the message in January, you should have got the message in June when you were looking at going to prison. But since June you haven’t done anything still, that you were ordered to do in January.

The district court clearly found that appellant’s violations were intentional and inexcusable.

Third, the evidence in the record supports a 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. There must be a balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.” Austin, 295 N.W.2d at 250 (citation omitted). A decision to revoke probation requires a showing that the “offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.” Id. at 251 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978) (quotation omitted)). Grounds for revocation can include a finding that on the basis of the original offense and the intervening conduct, failure to revoke probation would denigrate the seriousness of the probation violation. Austin, 295 N.W.2d at 251 (concluding that seriousness of probation violation would be denigrated if probation were not revoked where person convicted of burglary and aggravated assault failed to enter treatment program as directed by the court).

Here, despite the fact that appellant was convicted of a drug offense, the district court found that he continued to use drugs and did not submit to a chemical-dependency evaluation. The district court also found that appellant had been given two chances but had complied with none of the court’s conditions of probation. The record supports a finding that appellant has demonstrated an unwillingness to be rehabilitated, and failure to revoke probation in this instance would denigrate the seriousness of the probation violations. The district court did not clearly abuse its discretion by revoking appellant’s probation and executing his 48-month sentence.

Affirmed.

^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.